"Separate but Equal" upheld in California

Today’s ruling is profoundly disappointing. As California State Supreme Court, Justice Moreno noted in his eloquent dissent:

"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 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".

The words of Justice Moreno “The [state supreme court] 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” will most probably be lost on the vast majority of this state’s citizens.

People have become so intent on the goal of their “side” that most have forgotten the principles that make civil society “civil.” Democracy, the rule of the majority, can work only when the rights of minorities within that society are protected. US Supreme Court Justice Stephen G. Breyer has said:

"The Supreme Court must promote the rights of minorities and look beyond the Constitution’s text when necessary to ensure that ‘no one gets too powerful".

Social conservatives often refer to judges such as Moreno and Breyer as “activist judges”. The term itself was coined after the decision Brown vs. Board of Education by the US Supreme Court. That landmark case threw out the 1896 ruling in Plessy vs. Ferguson by the same court, which established “separate but equal” as the law of the land.

Today’s ruling by our state Supreme Court probably has all the technical correctness of Plessy vs. Ferguson and none of the justice of Brown vs. Board of Education. Today, the civil rights of all minority groups in California are placed at risk. The principle established by today’s court ruling is that a simple majority of the electorate may, at will, violate the equal protection clause of the state constitution.

We know that we will win this battle at the ballot box. We know that the numbers are on our side and that we have reached a cultural tipping point on this issue. We will overcome this injustice in November of 2010 when we repeal Prop 8 through the ballot initiative process. No minority group in this state or in this country should be required to secure its rights through a simple majority vote. If Blacks had been required to do this, Rosa Parks would still have to give up her seat on a bus to a white man. Obama would not sit in the Oval Office and would most probably not be permitted to sit in most restaurants in Washington, D.C.

Justice Moreno’s words accurately and chillingly convey what happened in California today. Today’s ruling, “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”.