History Is on My Side, Says Calif. Justice Who Voted Against Gay-Marriage Ban

Posted on July 26, 2009
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Carlos Moreno stood alone in May when he dissented from the decision upholding Proposition 8. But the California Supreme Court justice says history will prove him right — that denying gays and lesbians the right to marry is illegal discrimination.

“Someday at some point my dissent will be the majority view in California,” he said during an interview in his San Francisco chambers late Wednesday. “I think that’s where the law is headed.”

“Equal protection is either equal or it’s not,” he added. “It’s not the kind of thing you can chip away at.”

Moreno, one of four justices to back same-sex marriage last year and the sole vote against Prop 8 this year, took time to talk to The Recorder about his votes, his brief moment on the Obama administration’s short list for the nation’s highest court, and U.S. Supreme Court nominee Sonia Sotomayor’s controversial “wise Latina” comment.

Moreno’s dissent in Strauss v. Horton, 46 Cal.4th 364, came at a touchy time for him. He had been contacted by the Obama administration a week earlier as a possible replacement for retiring U.S. Supreme Court Justice David Souter. Since President Obama has officially stated his opposition to same-sex marriage, it could be assumed Moreno’s position on marriage and Prop 8 might be troublesome.

But, Moreno said, Obama’s vetters didn’t ask him how his Prop 8 vote — which wasn’t yet public — would go.

“They just asked if there were any high-profile cases — past or present, including on the trial court — that would be the kind of case that would draw attention.”

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