Equal Justice Under The Law

Remarks by Justice Carlos R. Moreno at the Equality California Awards Gala in San Francisco, February 13, 2010

I am truly honored by your invitation and award and I am humbled by your applause and welcome. I do well to introduce you to my wife, Chris (26 years) who inspires me, cajoles me, speaks to my inner voice and conscience.


Also introduce staff attorneys — Michael Nava and Tami Fisher.

You know what we consider to be self evident in the law has changed over time, and the law has changed in response. Indeed, changes in how we as a state, and as a nation, view the nature of a family has prompted important changes in family law, much of that change coming from the courts.

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.

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.”[i] 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.”[ii]

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.

Prior to our Marriages Cases our court had a series of cases dealing with advances in reproductive technology and the rights of non-birth lesbian partners. In one of those cases, Elisa B., we stated that: “We see no reason why both parents of a child cannot be women.” In the In re Marriage Cases (2008),[iii] we recognized at the outset that same-sex couples enjoyed virtually all of the substantive legal rights enjoyed by heterosexual couples, with one significant exception: their “officially recognized family relationship” was called a domestic partnership, rather than a marriage. Ultimately, as you well know, we held that not permitting same-sex couples to marry denies them equal protection of the law.

Several factors led us to this conclusion. First, 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.” Second, 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.” Finally, 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.”[iv]

The holding in The Marriage Cases that same-sex couples must be permitted to marry 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,[v] that I wrote. (I don’t think you’re honoring me for my opinions on arbitration and insurance coverage issues!) Well, at least I thought it 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.”[vi] 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”[vii] and concluded that the majority “essentially strip[ped] the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes.” (Id.)

To me, Proposition 8 was thus a revision of — not an amendment to — the California Constitution. Such a fundamental change in the meaning of equal protection, to the promise of equality, and the protection of family rights and the right to privacy, can be accomplished, if at all, only by either a constitutional convention or a measure passed by a two-thirds vote of both houses of the Legislature and approved by the voters — and not by a simple majority of the voters.

Thus, sixty years after Perez v. Sharp broadened the definition of the family to include marriage between people of different races, Proposition 8 narrowed that definition to exclude marriage between people of the same sex.

But neither the passage of Prop. 8, nor our court’s decision upholding that initiative measure, 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.


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, as we have seen. Things that seem self-evident 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, 20 years or more from now, only time will tell.

So I thank you, and I join all of you in the struggle for “Equal Justice under the law” as our Supreme Court proclaims — we, you, deserve nothing more and nothing less.