Prop 8: Moreno dissents
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In law school, when assigned to read cases I felt were decided wrongly, I would read the dissent first to fortify myself for the chore of reading the majority opinions.I downloaded the Prop 8 decision and skipped to Carlos Moreno’s lonely and eloquent dissenting opinion. It carefully lays out his legal argument for why a proposition that requires discriminating against a group based on a suspect classification is indeed a revision of the state constitution. But for this blog entry, I’ll spare you a re-cap of the analysis surrounding the distinction between a revision and amendment and share with you a selection of the grand statements that will ground me as I wade through the majority opinion. If you want to read the actual legal arguments—of which there are 185 pages worth, go here.
Justice Moreno’s name was briefly floated as a possibility for the Supreme Court and I wonder how this opinion would have played out in confirmation hearings. Guess we’ll never know.
Justice Carlos Moreno:
“The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent…
Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires. But even 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 that has pervaded the California Constitution since 1849. 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. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their “ ‘officially recognized, and protected family relationship’ ” (maj. opn., ante, at p. 7) a marriage, still denies them equal treatment…
I realize, of course, that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age old prejudice (Marriage Cases, supra, 43 Cal.4th at pp. 821-822, 846, 853) that makes the safeguarding of that right by the judiciary all the more critical…
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.”
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Happy Birthday Yuri Kochiyama and Malcolm X!
≡ Category: Politicking, Semi-daily thoughts | ≅ Comments Off
Today marks Yuri’s 88th birthday and what would have been Malcolm X’s 84th. Don’t know what was in the water on May 19th, but we could use some more of it these days. Cheers!
Update: Nikkei Brazilian repatriation policy amended
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The Japanese government has amended the ban on re-entry for Nikkei Brazilians who choose to repatriate from “indefinite” to 3 years. I had previously blah blahed about this earlier as did my friend Peter. Well, Peter’s thoughts are more refined than my blah blahs. He makes some interesting points about how re-training opportunities and the larger package of options presented did not receive coverage in US and other English language coverage of Japan.Fundamentally, I think an indefinite ban is wrong from a human rights angle and counter productive to Japan’s long-term interests so this is a step in the right direction.
Coverage in Mainichi Shimbun in English and Japanese.
