California Supreme Court Justice Dissents

"[T]he ‘absolute equality of all’ persons before the law [is] ‘the very foundation principle of our government.’ " (Varnum v. Brien (Iowa 2009) 763 N.W.2d 862, 877.)

"The question before us is not whether the language inserted into the California Constitution by Proposition 8 discriminates against same-sex couples and denies them equal protection of the law; we already decided in the Marriage Cases that it does. The question before us today is whether such a change to one of the core values upon which our state Constitution is founded can be accomplished by amending the Constitution through an initiative measure placed upon the ballot by the signatures of 8 percent of the number of persons who voted in the last gubernatorial election and passed by a simple majority of the voters. Or is this limitation on the scope of the equal protection clause to deny the full protection of the law to a minority group based upon a suspect classification such a fundamental change that it can only be accomplished by revising the California Constitution...

...I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus "represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof." 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.

As discussed, there is no "underlying" principle more basic to our Constitution than that the equal protection clause protects the fundamental rights of minorities from the will of the majority. Accordingly, Proposition 8’s withdrawal of any of those rights from gays and lesbians cannot be accomplished through constitutional amendment. ...As discussed, denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.

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. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution."

California Supreme Court Justice J. Moreno, concurring [legality of existing marriages] and dissenting opinion, May 26, 2009