Read The Prop 8 California Supreme Court Ruling Here
J. Moreno makes some powerful statements in his dissent. ( I have posted much of his writing below.) I know the entire ruling is long, but I suggest some reading time be set aside, as will be done here, to better understand the ruling. There are future battles to be waged on this matter in California.
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 (Amador Valley).) 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.
Equal protection principles lie at the core of the California Constitution and have been embodied in that document from its inception. (Grodin et al., The California State Constitution: A Reference Guide (1993) p. 47.) Former section 11 of article I of the original 1849 Constitution stated, “All laws of a general nature shall have a uniform operation” and section 21 of article I of the 1879 Constitution added, “nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.” These provisions were “substantially the equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution.” (Department of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586, 588; see Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 15, fn. 13.) In 1974, an express equal protection clause was added to the California Constitution that mirrors the language of the Fourteenth Amendment to the United States Constitution.
Ensuring equal protection prevents “governmental decisionmakers from treating differently persons who are in all relevant respects alike. [Citation.]” (Nordlinger v. Hahn (1992) 505 U.S. 1, 10.) The doctrine’s purpose is to protect “against intentional and arbitrary discrimination.” (Sunday Lake Iron Co. v. Wakefield (1918) 247 U.S. 350, 352.) As such, it is a shield against arbitrary government power, because equal protection “requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” (Cruzan v. Director of Missouri Dep’t of Health (1990) 497 U.S. 261, 300 (conc. opn. of Scalia, J.).) Thus, it is not so much a discrete constitutional right as it is a basic constitutional principle that guides all legislation and compels the will of the majority to be tempered by justice. The Iowa Supreme Court, in affirming the constitutional right of gays and lesbians to marry, recently recognized the importance of this promise of equality, stating: “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.” (Varnum v. Brien, supra, 763 N.W.2d 862, 905, italics added.)
Of particular importance for this case is that discrimination against disfavored minorities is presumptively suspect under the equal protection clause. As we affirmed in the Marriage Cases, supra, 43 Cal.4th at page 842, and as the majority reaffirms today (maj. opn., ante, at p. 42), sexual orientation is such a suspect classification. Under our state equal protection jurisprudence, as in federal law, laws that involve suspect classifications or touch upon fundamental interests are subject to strict scrutiny, meaning that “ ‘ “ ‘ “the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.” [Citation.]’ ” ’ ” (Marriage Cases, supra, 43 Cal.4th at p. 832, italics omitted.)
The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect. Rather, the enforcement of the equal protection clause is especially dependent on “the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 141.)
California’s equal protection doctrine has not been confined to that of federal Fourteenth Amendment jurisprudence: “[O]ur state equal protection provisions . . . are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable.” (Serrano v. Priest (1976) 18 Cal.3d 728, 764.) The equal protection clause of our state Constitution is important as a provision of independent force and effect only when this court extends greater protection under that provision than the high court has extended under the equal protection clause of the federal Constitution.
The majority upholds Proposition 8 by reasoning that it does not “fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated” in the Marriage Cases, because it merely “carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples . . . .” (Maj. opn., ante, at p. 7.) The majority protests that it does not mean to “diminish or minimize the significance that the official designation of ‘marriage’ holds” (ibid.), but that is exactly the effect of its decision.
Denying the designation of marriage to same-sex couples cannot fairly be described as a “narrow” or “limited” exception to the requirement of equal protection; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description. “[T]he constitutional right to marry . . . has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution . . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781.) Prior to the enactment of Proposition 8, the California Constitution guaranteed “this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” (43 Cal.4th at p. 782.) “In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.” (Id. at p. 820, fn. omitted.)
We recognized in the Marriage Cases that “draw[ing] a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership)” (Marriage Cases, supra, 43 Cal.4th at p. 782) “impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.” (Id. at p. 784.) Denying same-sex couples the right to call their relationships marriages treats them as “ ‘second-class citizens.’ ” (Id. at p. 785.) As we observed in the Marriage Cases, “there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.” (43 Cal.4th at p. 855.)
Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires. But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their “ ‘officially recognized, and protected family relationship’ ” (maj. opn., ante, at p. 7) a marriage, still denies them equal treatment.
There is no doubt that the ultimate authority over the content of the California Constitution lies with the people. “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” (Cal. Const., art. II, § 1.) But there are two methods for the people to alter the California Constitution: by revising it or by amending it. A revision to the Constitution must be initiated by the Legislature in one of two ways: the Legislature, by a two-thirds vote, “may submit at a general election the question whether to call a convention to revise the Constitution” (Cal. Const., art. XVIII, § 2), or the Legislature, by a two-thirds vote, may propose a revision of the Constitution to be submitted to the voters (Cal. Const., art. XVIII, § 1). This is in contrast to a constitutional amendment, which can be accomplished by a majority of the electorate after the signatures of 8 percent of the number of persons who voted in the last gubernatorial election have qualified it for the ballot. (Cal. Const., art. II, § 8, subd. (b).)
We have long recognized the importance of this distinction between revising and amending the Constitution. In Livermore v. Waite (1894) 102 Cal. 113, which was decided before the initiative process was created in 1911, we observed that, at that time, there were “two methods by which changes may be effected in [the California Constitution], one by a convention of delegates chosen by the people for the express purpose of revising the entire instrument, and the other through the adoption by the people of propositions for specific amendments that have been previously submitted to it by two-thirds of the members of each branch of the legislature.” (Id. at p. 117.) We noted that there was a basic difference between the process of revising the Constitution by means of the constitutional convention and amending the Constitution. “Under the first of these methods [revision] the entire sovereignty of the people is represented in the convention. The character and extent of a constitution that may be framed by that body is freed from any limitations other than those contained in the constitution of the United States.” (Ibid.) The power of amendment, however, was much more limited: “The power of the legislature to initiate any change in the existing organic law is, however, of greatly less extent, and, being a delegated power, is to be strictly construed under the limitations by which it has been conferred. . . . The legislature is not authorized to assume the function of a constitutional convention, and propose for adoption by the people a revision of the entire constitution under the form of an amendment . . . .” (Id. at pp. 117-118.)
We took care in Livermore to explain the reason for this difference between the broad power of revision and the greatly limited power of amendment: “The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” (Livermore v. Waite, supra, 102 Cal. at pp. 118-119.) 
The emergence of the initiative process did nothing to alter the distinction between amending and revising the Constitution. The initiative process was created in 1911 to permit the people to directly enact statutes and amend, but not revise, the Constitution. As has been well documented and often recounted, the introduction of direct democracy in California in the form of the initiative, referendum, and recall process, was in response to government corruption prevalent at the beginning of the last century. (See Cal. Com. on Campaign Financing, Democracy by Initiative: Shaping California’s Fourth Branch of Government (1992) pp. 36-40.) Corporate power, principally that of the Southern Pacific Railroad, dominated state government and had undermined both the independence of the judiciary and the Legislature’s role as a servant of the popular will. (Id. at pp. 36-38.) Also of concern were corrupt political bosses and big-city machines. (Id. at pp. 39-40.) Hiram Johnson and his allies in the Progressive movement sought to restore the connection between government and the majority will by allowing the people to bypass an unresponsive Legislature and enact their own legislation. (Id. at pp. 40-42.)
Although this initiative process was thereby instituted as a remedy for government corruption, and to free legislation from the influence of powerful special interests and the Legislature’s own self-serving inertia, there is no indication that this process was intended to prevent courts from performing their traditional constitutional function of protecting persecuted minorities from the majority will. There is a fundamental difference between preventing politically powerful minorities from unduly influencing legislative and judicial decisions on the one hand, and preventing courts from protecting the rights of disfavored minorities unable to obtain equal rights through the usual majoritarian processes on the other. There is no indication that the Progressives who framed the initiative process were insensible to that distinction, or that they sought to abolish the judiciary’s role as the guardian of minorities’ fundamental rights.
 I agree with part VI of the majority opinion that Proposition 8 does not invalidate same-sex marriages entered into before its passage. (See maj. opn., ante, at p. 13.) I also agree with the majority opinion that Proposition 8 does not entirely repeal or abrogate a same-sex couple’s substantive state constitutional right to marry as set forth in the Marriage Cases, but rather carves out an exception by “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples.” (Maj. opn., ante, at p. 7.)
 The equal protection clause was added to the California Constitution, article I, section 7, upon the recommendation of the California Constitution Revision Commission, as part of 1974’s Proposition 7, a ballot measure proposed by two-thirds of both the Senate and the Assembly, which, according to the Legislative Counsel’s Digest, “[r]evises, renumbers and specifically provides for various constitutional rights of persons.” (Legis. Counsel’s Dig., Assem. Const. Amend. No. 60 (1973-1974 Reg. Sess.) 2 Stats. 1974, Summary Dig., p. 275.)
 The majority contends that “when the entire pertinent passage of the Livermore decision is considered, it appears reasonable to conclude that the court in Livermore itself would have recognized that a measure such as Proposition 8 constitutes a constitutional amendment, because in describing the type of measures that would constitute an amendment, the court in that case noted that ‘some popular wave of sociological reform, like the abolition of the death penalty for crime, or a prohibition against the manufacture or sale of intoxicating liquors, may induce a legislature to submit for enactment, in the permanent form of a constitutional prohibition, a rule which it has the power itself to enact as a law, but which [as such] might be of only temporary effect.’ [Citation.] In adding to the California Constitution a provision declaring that marriage shall refer only to a union between a man and a woman, Proposition 8 would appear to constitute just the type of discrete ‘popular’ and ‘sociological’ amendment that the Livermore decision had in mind.” (Maj. opn., ante, at pp. 104-105, fn. omitted.) Yet it is clear from reading the “entire” passage, that the majority’s interpretation is dubious, because Livermore speaks in terms of enacting in “permanent form” “a rule which [the Legislature] has the power itself to enact as a law, but which [as such] might be of only temporary effect.” (Livermore v. Waite, supra, 102 Cal. at p. 119.) What is at issue in this case is an alteration in the Constitution that the Legislature would have no power to enact, and is therefore fundamentally distinguishable from the type of amendment contemplated by Livermore in the above passage.