The Revisionist Theory of Marriage in California

Tuesday, July 20, 2010

Page 7

IN MY OPINION (Column)

The Revisionist Theory of Marriage in California

By KEVIN NORTE

(The writer is a court research attorney . His views are entirely his own and do not in any way reflect the position of his employer.)

When I originally authored, “Is the Proposed ‘Limit on Marriage’ Initiative Too Late?” for the Metropolitan News-Enterprise on Wednesday, May 21, 2008, and my follow-up MCLE piece “Election Law: How One Legally Might Remove a Ballot Initiative Prior to an Election” on Tuesday, June 17, 2008, again in the MetNews, I felt a consciousness unlike anything I ever experienced. I was sure that I was “legally certain,” but with politics as they are, I had this feeling it was not going to be “politically correct” for a few years.

The trial of Strauss v. Horton upheld Proposition 8 and shamefully enshrined discrimination in the California Constitution. May 26, 2009, was a dark day for the California judiciary. However, a Court of Appeal associate justice said that I should fell terrific because Supreme Court Associate Justice Carlos Moreno agreed with my “Revisionist Marriage Theory.” (Note—in doing research on this topic, the issue of marriage and revisions under the California Constitution begins with my series of MetNews articles. It did not exist until I wrote it.

The justice explained that my “Revisionist Marriage Theory” was adopted as the dissent in Strauss v. Horton and that I should be proud that I did something attorneys try for their entire careers. The justice then spoke under the false assumption that Moreno and myself discussed the theory because the dissent had me written all over it. I blushed but then I smiled and informed him that I never met Moreno nor did I speak to him.

I got married to my high school sweetheart and partner of 30 years on our 30th anniversary. My family was now protected in California, but the battle was not and is not over for me. Moreno’s words helped me sleep easy that night and today it still gives me strength and courage, and wisdom to believe in myself.

To rest easy the night of May 26, 2009, I read a little of what Moreno wrote:

For reasons elaborated below, 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.” (Amador Valley Joint Union High Sch. Dist. v. State Bd of Equalization (1978) 22 Cal.3d 208, 221, 149 Cal.Rptr. 239, 583 P.2d 1281…) The rule the majority crafts today not only allows same-sex couples to be stripped of their 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.”

—Moreno, California Supreme Court, (Strauss v. Horton (2009) 46 Cal.4th 364, 483-484.)

Now attorney Theodore Olsen has taken up the Prop. 8 cause and Federal Judge Vaughn Walker might have the courage to do what only Moreno would do and that is call Proposition 8 what it is: discrimination against a minority. A Massachusetts judge struck down the Defense of Marriage Act on the grounds that it is discrimination. I have always unwaveringly agreed and I believe more people today believe in that position than in 2008.

Recently California Supreme Court Chief Justice Ronald M. George has announced his retirement. Moreno has the courage and strength to be a true leader and I call on Gov. Arnold Schwarzenegger to name Moreno as the replacement for the retiring George. Moreno will be California’s next great Supreme Court chief justice.