Tuesday, May 26, 2009

From the dissent

Yay, Justice Moreno, who had been suggested as a SCOTUS candidate. I suspect his chances for that are scuppered by this dissenting opinion:
Under the majority’s reasoning, California’s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans’ right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession (id., § 8). .....

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution. This could not have been the intent of those who devised and enacted the initiative process.

In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.




Wherever you are, join the Day of Decision rallies throughout CA and across the country.

4 comments:

PseudoPiskie said...

Do domestic partners have all the rights and privileges California can grant except the word marriage?

Göran Koch-Swahne said...

It seems to me that this descision makes the fault-lines, the cracks, in Soc-iety evident, turning it into a kind of Apart-iety...

Göran Koch-Swahne said...

Maybe, just maybe, they shouldn't have done this...

IT said...

Technically, pretty mch, Pseudopiskie, but there are numerous examples and stories where people are denied those rights. A number of people have found saying at the hospital "we are domestic partners" means NOTHING and they are denied access anyway. It is routinely ignored.

Small consolation to sue later if your partner is dead.

Getting a DP licene is like a glorified dog license, not at all like a marriage license.

I suspect that we will have the same problem, being one of the 18,000.