Remarks by CA Supreme Court Justice Carlos R. Moreno at APABA's 12th Annual Installation Dinner, 2/25/10
March 01, 2010On Thursday, February 25, 2010, APABA of LA County celebrated our 12th anniversary with a sold-out installation banquet of 350 guests at the Los Angeles Athletic Club. At the banquet, APABA presented its 2010 Public Service Award to the Hon. Carlos Moreno, Associate Justice of the California Supreme Court, in recognition of his long and outstanding career as a local, state and federal judge and also in honor of his judicial decisions that have served to protect and further the rights of those with limited power. We thank Justice Moreno for honoring us and our guests with his presence as well as his following eloquent and inspiring remarks in accepting the APABA 2010 Public Service Award:
Thank you, Karin, for that introduction. Truly honored by this award for public service and I am truly humbled by your applause and welcome.
A mere 62 years ago — now, I know 62 years seems like a very long time to many of you, but it no longer seems like such a long time to me and one or two others here tonight — but a mere 62 years ago, it was not self-evident that a white woman could marry an African-American man. Or an Asian American for that matter
In 1948, our state law prohibited a white person from marrying a “Negro, mulatto, Mongolian or member of the Malay race.” A white woman named Andrea Perez and an African-American man named Sylvester Davis were denied a marriage license and claimed the law violated their right to religious freedom, because they were Roman Catholic and their church did not prohibit interracial marriage. A closely divided California Supreme Court, led by the great Justice Roger Traynor, struck down the law, holding that it violated the Equal Protection Clause of the United States Constitution by “impairing the right of individuals to marry on the basis of race alone and by arbitrarily and unreasonably discriminating against certain racial groups.”[1] The decision in Perez v. Sharp recognized that discrimination could not be justified by the fact that it had “been sanctioned by the state for many years.”[2]
It took almost 20 years before the U.S. Supreme Court came to the same conclusion at a time when 16 states still barred inter-racial marriage.
As you well know, in the Marriage Cases we held that not permitting same-sex couples to marry denies them equal protection of the law.
We noted that, denying same-sex couples the right to marry “clearly is not necessary in order to afford full protection to all of the rights and benefits . . . enjoyed by married opposite-sex couples.” And that, such a denial “impose[s] appreciable harm on same-sex couples and their children” because it robs them of the “dignity” and “stature . . . equal to that of opposite-sex couples.” And, we noted that denying same-sex couples this right perpetuates the “premise . . . that gay individuals and same-sex couples are . . . ‘second-class citizens’ who may, under the law, be treated . . . less favorably than . . . opposite-sex couples.”[3]
We know that the holding in The Marriage Cases was short lived. Only 170 days later, on November 4, 2008, the voters passed Proposition 8, providing that: “Only marriage between a man and a woman is valid or recognized in California.”
Ironically, that same day, the voters also passed an initiative regulating the confinement of chickens in coops. As Chief Justice George noted, “Chickens gained valuable rights in California the same day that gay men and women lost them.”
As you know, the California Supreme Court upheld the validity of Prop. 8 despite a very persuasive concurring and dissenting opinion,[4] that I wrote. (I don’t think you’re honoring me for my opinions on class action arbitration waivers or insurance coverage issues!) Well, at least I thought my dissent was persuasive; unfortunately, none of my colleagues agreed. But the central issue in the Prop. 8 decision actually was not same-sex marriage (and its conclusion that gays and lesbians constituted a suspect class was not contravened by Prop. 8); it was the limits of the electorate’s ability to amend the California Constitution using the initiative process.
In my view, Proposition 8 was a “change to one of the core values upon which our state constitution is founded.”[5] As I wrote in my dissent, “[e]ven a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment. . . . Promising equal treatment to some is fundamentally different from promising equal treatment to all.
Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment.
I relied on the fact that the equal protection clause of the California Constitution “is intended to operate independently of and in some cases more broadly than its federal counterpart”[6] and concluded that the majority “essentially strip[ped] the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes.” (Id.)
But the Court’s opinion in the Prop. 8 case didn’t just impair the rights of gays and lesbians. The principle laid down in that case — that a simple majority vote by the electorate can “wrench[] minority rights away from judicial protection” — threatens the rights of all minority groups.[7] Thus, that decision was “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.”[8]
I wrote about this in my dissent noting that, seemingly narrow abdications of the judicial duty to protect minorities from the will of the majority can end up having far-reaching consequences. I cited as an example the Korematsu case, in which the U.S. Supreme Court upheld the internment of over 100,000 Japanese-Americans during World War II. The High Court based this ruling on an earlier case, Hirabayashi v. United States, which had sustained a military order imposing a curfew on Japanese-Americans. As Justice Robert Jackson explained in dissent: “[I]n spite of our limiting words [in Hirabayashi] we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones.”[9]
Thus, one is compelled to ask, if the allegedly “mild” ruling in Hirabayashi can subsequently become the basis for upholding the internment of over one hundred thousand people on the basis of national origin, what prevents the majority’s reasoning in the Prop. 8 case from one day becoming the basis for further, broader deprivations of fundamental human rights?
But neither the passage of Prop. 8, nor our court’s decision upholding Prop. 8, has put an end to the debate over same-sex marriage, just as it took a number of years, and perhaps decades, to reduce the debate and controversy over inter-racial marriage. A challenge to Prop. 8 based upon the federal Constitution is now pending in federal district court. The debate will continue, the nature of the family will continue to evolve, and the law will change in response, from the people, and from the Courts, and perhaps at some point, the U.S. Supreme Court.
We know as judges and lawyers know that change in these matters does not come quickly, but it does come, step by step, measure by measure, and it doesn’t come easily. Things that seem obvious now — like that interracial couples have the right to marry — were not always so. What will appear self-evident, and commonly accepted, throughout our state and nation, a generation from now, only time will tell.
So I thank you for this award, and I join all of you in the pursuit for “Equal Justice under the law” as our Supreme Court proclaims — you, we, deserve nothing more, but also nothing less.
[1] Perez v. Sharp (1948) 32 Cal.2d 711, 731
[2] Id. at p. 727
[3] Id. at pp. 784-785
[4] Strauss v. Horton (2009) 46 Cal.4th 364
[5] Id. at p. 483 (Moreno, J. concurring and dissenting)
[6] Id. at p. 497 (Moreno J. concurring and dissenting)
[7] Strauss v. Horton, (2009) 46 Cal. 4th 364, 498.
[8] Id. at 499
[9] Korematsu v. United States (1944) 323 U.S. 214, 247
