Justice Moreno Gives Bodenheimer Lecture on ‘Self-Evident Truths'

Justice Carlos Moreno of the California Supreme Court delivered the annual Brigitte M. Bodenheimer Lecture on Family Law at King Hall on February 11, speaking on "Self-Evident Truths" to a packed Wilkins Moot Courtroom audience of students, staff, and King Hall faculty.  Justice Moreno touched on several of the Court's recent decisions with regard to family law, including its 2008 ruling to recognize same-sex marriage and its 2009 ruling uphold California's Proposition 8, a voter initiative prohibiting the recognition of same-sex marriage.  Justice Moreno was the lone dissenter in the Proposition 8 case.

A pioneering Latino in the judiciary and a longtime friend of the Law School who frequently has spoken at King Hall, Justice Moreno described his lecture as an effort to "explore the promise of equality and how that promise has been affected by the evolution of the family and how we define family."  He touched on the Declaration of Independence's assertion of "self-evident" truths, noted that "our view of what truths are self-evident really changes over time," and traced some of the ways in which family law has been impacted. 

The social consensus regarding marriage has changed markedly, as have the nation's laws, Justice Moreno said.  Interracial marriage was illegal in California until 1948, when a divided California Supreme Court struck down the state's anti-miscegenation law in Perez v. Sharp.  Yet bans on interracial marriage persisted in 16 states until the U.S. Supreme Court struck them down in a 1967 decision.  Now, the United States has a president who is the product of an interracial marriage, Justice Moreno noted.

"Slowly but surely, our views of what is self-evident and acceptable has changed," he said.

Technology has also driven changes in family law, as the advent of in vitro fertilization has made possible the use of surrogate mothers and prompted new questions about the legal definition of parenthood.  Justice Moreno described how, in a series of cases including Johnson v. Calvert, Eliza B., K.M. v. E.G., and Kristine H. v. Lisa R., the California Supreme Court has defined parental rights and responsibilities with regard to surrogate mothers and same-sex partners.

Justice Moreno said that most recently the rights of same-sex couples have been challenging traditional notions of the family and driving changes in the law.  He described the Court's 2008 decision to strike down a ban on same-sex marriage, and the Court's decision just a few months later to uphold Proposition 8, the same-sex marriage ban passed by voters just 170 days later.

"The central issue in the Proposition 8 decision was not directly same-sex marriage," said Justice Moreno.  "The issue was the limit of the voters' ability to amend the Constitution using the initiative process."

Justice Moreno believes that Prop. 8, in denying equal protection to same-sex couples, "was a change to one of the core values upon which our state Constitution was founded," and thus something that could not be accomplished via the initiative process. "Such a fundamental change to the meaning of protection, to the promise of equality, to the protection of family rights, and the protection of individual rights, can be accomplished, if it can be accomplished at all, only by a constitutional convention or a measure passed by two-thirds of both houses of the Legislature and approved by voters," he asserted.

He expressed his regret that the other Justices did not agree, but said the issue of same-sex marriage is far from resolved in the courts, noting the federal court challenge to Prop. 8 that could end up going to the U.S. Supreme Court.

"This debate is continuing," he said.  "The nature of the family will continue to evolve, and the law will change in response." 

"The things that seem self-evident now - for example, that interracial couples should have the right to marry - were not always so," he said.  "I offer to you the idea that what will appear self-evident and commonly accepted throughout our state and throughout our nation 20 years from now on this question of same-sex marriage, only time will tell."

Established in 1981 in memory of Professor Brigitte M. Bodenheimer, an internationally renowned teacher, scholar, and reformer of the law, the Brigitte M. Bodenheimer Lecture on Family Law brings scholars and practitioners to King Hall to discuss recent developments affecting the family.