California Supreme Court Justice Supports Equal Rights

"I agree with the majority that Proposition 8 is a valid amendment to the California Constitution rather than a procedurally defective revision. I reject, however, much of the majority’s analysis... The drafters of our Constitution never imagined, nor would they have approved, a rule that gives the foundational principles of social organization in free societies, such as equal protection, less protection from hasty, unconsidered change than principles of governmental organization.

The history of our California Constitution belies any suggestion that the drafters envisioned or would have approved a rule, such as that announced today, that affords governmental structure and organization more protection from casual amendment than civil liberties. The delegates to the 1849 constitutional convention recognized that "government was instituted for the protection of minorities," and that "[t]he majority of any community is the party to be governed; the restrictions of law are interposed between them and the weaker party; they are to be restrained from infringing upon the rights of the minority." Similarly, the delegates to the second constitutional convention in 1878-1879 well understood the charter they were drafting would provide the only effective protection for civil liberties. The initial draft of the 1879 Constitution, in a provision ultimately rejected, would expressly have looked to the federal Constitution for this purpose... Even the conservative delegates conceded that reliance on the federal Constitution as the principal author of liberties was "a mistake historically, a mistake in law, and it is a blunder all around." Thus, the convention’s refusal to label the federal Constitution ‘the great charter of our liberties’ provided a clear indicator ‘that the idea of rights rooted in the state’s own constitution was a robust one."

Equal protection’s continuing vitality in the present context is shown by this court’s unanimous reaffirmation..., that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that - excepting the name - same-sex couples are entitled to enjoy all of the rights of marriage. Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception. The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions "marriages," but it does not otherwise affect the state’s obligation to enforce the equal protection clause by protecting the "fundamental right . . . of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships." For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains."

California Supreme Court Justice J. Werdegar, May 26, 2009