Initiatives trample rights, California Justice Moreno says

San Francisco Chronicle
February 16, 2010

Ballot initiatives have been used to mislead the public and trample on the rights of minorities, says Carlos Moreno, the only California Supreme Court justice who voted to overturn the state's ban on same-sex marriage.

"It's of great concern to me that certain basic rights, such as equal protection, the right to privacy and other fundamental rights, can be subject to change by simple majority vote," Moreno said in an interview last week while preparing to accept a gay-rights group's Equality Leadership Award.

"Majority rule is nice in concept, but I think there has to be some kind of restraint on that to fulfill the larger purpose of our democracy."

Moreno, 61, a former federal judge in Los Angeles, was named to the state's high court in 2001 by Gov. Gray Davis. He has a generally moderate record, has voted to uphold numerous death sentences, and was on President Obama's list last year of potential candidates for the U.S. Supreme Court nomination that went to Justice Sonia Sotomayor. He will be on the ballot for a new 12-year term in November.

Moreno voted with the majority in the California court's 4-3 ruling in May 2008 that struck down state laws prohibiting same-sex marriage. The voters then passed Proposition 8, amending the state Constitution to define marriage as the union of a man and a woman, and the court upheld the measure in a 6-1 decision in May 2009.

The main issue in last year's ruling was whether the voters' power to change the Constitution by initiative includes measures that repeal a minority group's rights, such as the right to marry.

Moreno, in a dissenting opinion, argued that such measures strike at the heart of constitutional equality and should be placed on the ballot, if at all, only by a two-thirds legislative vote or a state constitutional convention.

The ruling "places at risk the state constitutional rights of all disfavored minorities," he wrote.

Prop. 8 is being challenged in a San Francisco federal court, a case in which Moreno described himself as "an interested observer." In the interview, he said the measure illustrated the modern-day hazards of rewriting state laws, particularly the Constitution, at the ballot box.

"Whatever virtue existed at the establishment of the initiative has been distorted," he said. "Any group of special interests, liberal or conservative, can raise money and get an initiative on the ballot, and can word it in a way that seems neutral or innocuous.

"Through the campaign, the voters can be misinformed. ...The process evades review and fact-finding by legislative committees and experts. (Initiatives) are often poorly worded and contradictory. It can be difficult for a court to interpret the voters' intent."

California might prevent some excesses by adopting the practice of other states that allow the Legislature to reword far-reaching initiatives before they go on the ballot, Moreno said. But he said he has no overall solution and is reserving judgment on proposals for a convention that would ask the voters to approve wholesale changes in the Constitution.

"Our powers as a court are extremely limited," he said.

Equality California, the state's largest gay-rights organization, saluted Moreno on Saturday. In prepared remarks, he reminded the group of the long battle over interracial marriage and said change on such matters "does not come quickly, but it does come, step by step, measure by measure."

Same-sex marriage would "enhance the whole notion of family," he said in the interview, predicting it will become widely accepted in 10 to 20 years. Asked about accepting an award from an advocacy group, Moreno said he often appears before diverse organizations, including the conservative Federalist Society and an association of business lawyers.

Between the court's May 2008 ruling legalizing same-sex marriage and the passage of Prop. 8 in November 2008, Moreno said, he conducted weddings for five or six gay and lesbian couples he knew. In last year's ruling upholding Prop. 8, the court validated 18,000 such marriages, saying the couples relied on rights the justices had recognized in their earlier decision.

Moreno said he had considered the possibility of a conflict of interest in performing the marriages, because the issue was sure to return to the court if Prop. 8 passed. But he concluded that the couples had waited long enough.

The ceremonies were "entirely legal," he said, and by refusing to officiate, "I would be discriminating against them. They'd been discriminated against for many years."   [Link]