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Carlos Moreno, California high court justice, is raising his profile

The justice's opposition to Proposition 8, a bold move for someone being considered for a seat on the U.S. Supreme Court, may signal a departure from the middle of the road.

September 26, 2009|Maura Dolan

SAN FRANCISCO — For most of his eight years on the California Supreme Court, the low-key and affable Carlos R. Moreno largely blended in with the six other justices, building a reliably middle-of-the-road record.

Then came Proposition 8, the initiative that reinstated a ban on same-sex-marriage. In May, Moreno cast the court's only vote to overturn it.

Now, with the court's term concluding last month, the jurist chosen because of his moderate views is getting a second appraisal from legal analysts, who say his unexpected boldness may signal a growing independence. His lonely stance has raised his profile and encouraged speculation that he may be stepping into a more visible role.

Moreno, in several interviews, offered some of his most extensive comments on the controversial decision, which he weighed while he was under consideration for a seat on the U.S. Supreme Court.

The court's lone Democrat, born in Los Angeles to Mexican immigrants, also indicated a greater willingness to dissent. Asked if he regretted any of his rulings, Moreno said he wished he had "stuck to my guns" and dissented in a criminal case last year in which the court upheld a conviction even though hearsay evidence was admitted. The U.S. Supreme Court later overturned the ruling.

Moreno has tended to vote with the court's more liberal jurists -- Joyce L. Kennard and Kathryn Mickle Werdegar -- and he joined a narrow majority in May 2008 to overturn the state's ban on same-sex marriage.

But he had never come close to becoming a liberal icon like Stanley Mosk, the late justice whom Moreno replaced. Court analysts were more likely to commend Moreno for congeniality than for courage.

"His signature opinion to date is his dissent in the Prop. 8 case," said Jon Eisenberg, an appellate lawyer. "He did not stay under the radar. He took a position without regard to the consequences. . . . That was unusual for him because he threw caution to the wind."

Embracing a novel theory, Moreno said he "legally and morally" believes that a measure that strips a minority of a key right can not be approved as constitutional amendment by a mere majority in an election. That's a stance the state court has never taken and, had President Obama nominated him to the U.S. Supreme Court, it could have doomed his appointment.

UC Irvine Law School Dean Erwin Chemerinsky said it was remarkable that Moreno held to his position on Proposition 8 once he learned of his candidacy. "He knew he was being considered for the U.S. Supreme Court, and it would have been very easy for him in a 6-1 case to make it unanimous," Chemerinsky said.

Moreno, who has a gay nephew and lesbian niece, said in his dissent that the ballot measure was a threat to all minorities.

"Feelings about same-sex marriage are really generational," Moreno said over lunch at a Peruvian cafe near his San Francisco chambers. "The bans against interracial marriage were at one time widely accepted, but no one would tolerate that kind of restriction in modern times. And I think the same is true for gay marriage."

Moreno also was the only member of the court to marry a gay couple before voters reinstated the marriage ban. One of his law clerks asked him to do the honors.

Chief Justice Ronald M. George, who wrote the historic ruling that first allowed gays to wed in California, also had been asked to marry gay couples. He refused, saying it might create an appearance of conflict if Proposition 8 passed and came before the court.

Moreno said he concluded it would be "discrimination" to refuse, because same-sex marriage at the time was legal.

Moreno views himself as a centrist. When former Gov. Gray Davis selected him for the court in 2001, an aide told him the administration wanted a judge like George, a moderate Republican who is often the swing vote on the court.

"They got exactly what they wanted in me, which is a moderate-to-liberal centrist," said Moreno, a former federal judge who will appear on the ballot next year in a retention election.

A review of court decisions over a recent 15-month period found Moreno agreed most often with George. He disagreed with the court's conservatives as often as with its liberals.

"So he is very much dead center," said Santa Clara University Law Professor Gerald Uelmen, who did the analysis.

Still, those who know Moreno say he is personally closest to the court's more liberal justices and more likely than George to vote with them. Chemerinsky called Moreno "one of the more liberal judges on a fairly conservative court."

Although Moreno has shown independent streaks before, he said he believes "the law should develop incrementally."

"I am not in favor of big leaps," he said.

He prefers the label "careful" to "cautious," though he adds, "I don't think that 'cautious' is too far off the mark."

Asked whether his years on the court have made him more confident and willing to dissent, he hesitated.

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