This is from Plessy v. Ferguson:
"A statute which implies merely a legal distinction between the white and colored races -- a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color -- has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude."
[...]
"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."
And this is from today's Proposition 8 decision, which I'm reading now:
"Contrary to petitioners' assertion, Proposition 8 does not entirely repeal or abrogate... same sex couple's state constitutional right of privacy and due process...the measure carves out a narrow and limited exception to state constitutional rights, reserving the official designation of the term "marriage" for the union of opposite sex couples as a matter of state constitutional law...By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of "marriage" holds for both the opponents and proponents of Proposition 8... it is only the designation of marriage that has been removed..."
I just found the Plessy decision and decided to compare and was shocked to see similar language. This is insane. California's initiative process is crazy.
The decision goes on to say that it is not a revision, just an amendment. It rejects nearly all the petitioners' (meaning the No side) arguments.
It goes onto argue that voters in California can, through initiative, limit or eliminate "any" rights if adopted just by a simple majority.
They argue that there's no violation of equal protection, due process, privacy or anything else and state repeatedly that it's an "overstatement" to think otherwise. They reject the Attorney General's argument by saying that the definition of marriage isn't a fundamental right.
So I'm going to start referring to all marriages as "marriages" now, with scare quotes. We'll see if it's important.
They say that the fact that there are "inalienable" rights doesn't mean the courts have to uphold them. The California constitution, while calling some things inalienable rights, according to the Court does not prohibit any section from amendment or invalidation.
They also say that while there's a "right to marry" there's no right to call it marriage. I guess that... makes sense?
The argument is that couples are entitled to all the benefits of marriage but without the word. They say that this is a minor distinction that affects nothing important and Californians have the right to define the word marriage however they want. Which is what I thought a dictionary was for but I guess not.
I guess that the only way Prop. 8 would have been overturned is if it also took away "rights" from gay couples. But they say it doesn't. At all. Just defines a word completely differently from one couple to the next.
I guess it's sort of like how one man's tough interrogation is another man's enhanced interrogation and yet another's torture. The scars are less real as the words become nicer. But nothing changes. Oh no.
On a related note, George Orwell had something to say about this in his government handbook, 1984:
"...[we’re] cutting the language down to the bone . . . Newspeak is the only language in the world whose vocabulary gets smaller every year"
[...]
"In the end we shall make thoughtcrime literally impossible, because there will be no words in which to express it"
That never hurt anyone, right?
They argue that gay couples can still have a protected 'family' but not marriage. I guess marriage is no longer family related? How long til people decide to write the definition of family into the constitution? Will it be on the ballot in 2010?
They say same sex couples enjoy these rights not because the legislature grants them, but because they EXIST, and then say, but you can't call it marriage.
The equal protection clause isn't overturned or eliminated, the court says, but edited to include an exception for the definition of marriage. It's good they didn't overturn equality... just CHANGED what it means.
Totally different.
I'm reading more so I might update this as I get more relevant information.