Last Train to Covington

Basin blues.

On June 7, 1892, Homer Plessy bought a first-class ticket for Covington on the East Louisiana Railway, and found himself a seat. That night, he found himself in jail.

Plessy, seven-eighths Caucasian by the standards of the day, had boarded a Whites-only coach. The keen-eyed conductor, empowered by an 1890 state law, asked Plessy to move to a Colored coach on the same train. When Plessy refused, the New Orleans police were called in to haul him away.

Violating the law carried a $25 fine or twenty days in jail.

The case we know as Plessy v. Ferguson reached the Supreme Court in 1896. Justice Henry Billings Brown, writing for the 7-1 majority, argued that the still-fresh 13th and 14th Amendments — one abolishing slavery, the other guaranteeing all citizens “the equal protection of the laws” — had no bearing on the matter at hand:

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…

After all, the same engine was pulling both coaches, and all passengers would reach Covington at the same time. No harm, no foul.

But Justice John Marshall Harlan — himself a former slaveholder — called out the underlying issue in his dissent:

Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons…

Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

The doctrine of “separate but equal” would remain the law of the land until 1954, when it was overturned by Brown v. Board of Education. At least in 49 states. In California, the state Supreme Court reaffirmed the principle Tuesday:

Here the new constitutional provision [Prop 8] provides in full: “Only marriage between a man and a woman is valid or recognized in California.” By its terms, the new provision refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.”

Hey, you still get to shack up with the blessing of the state — you just can’t use the M-word. What’s wrong with that?

Just one thing: Either citizens of our great Republic are equal before the law, or they are not. In California, we now know the answer.

Plessy v. Ferguson [FindLaw]

Prop 8 decision (pdf) [California Supreme Court]


While I sympathize with the gist of this writeup, I think it’s far too generous to the many states that are far more bigoted even than California in their attitudes toward gays. In Virginia, for instance, companies are prohibited by law from offering domestic partnership benefits to gay couples and women have been stripped of custody of their children for being lesbians.

A quick note: here in Cal, state court judges, including those on our Supreme Court, do not have life tenure but rather have to stand for election or “confirmation” every so many years. Don’t think that they are not aware of this.

@Dodgerblue: Two words: Rose Bird.

@Serolf Divad: And of course, in four states, gays can’t adopt children from foster care. To my state’s credit, here in SF, you can’t walk more than 5 feet in the Castro or on the Muni without seeing an ad featuring same sex parents and multi-racial children imploring teh gheyz to foster and adopt kids.

And now a new challenge to Prop. 8 has been filed in federal district court and oddly enough, counsel are Ted Olson and David Boies. I do not like this one bit.

SanFranLefty: Of course, judicial retention ballots are a total joke. At least, they are here in Chicago. A judge would basically have to get caught robbing a bank or, you know, killing somebody before they would get tossed.

But anyway: the whole white European Christian guy domination thing that this country imported is getting old. There is a change coming, and it may come violently. A good start might be a mob beating Lars von Trier to a bloody pulp.

(Mind you: it would do nothing to advance the cause of equality in this country, necessarily. It’ll feel really good though, on account of recent events. [Particularly squeamish Stinquers, especially those who, you know, kinda sorta think women are pretty cool, might not want to click here.])

SanFranLefty: Waitaminnit — Prop 8 was a question of state law, right? Federal jurisdiction FAIL.

Seriously. Was Prop 8 good? Hell to the no. Were the people who voted for it morons? Yep. Should human rights be voted on? Not on your life.

But: will a Court reversing a vote of the people do anything to help? Sadly, it would do more harm than good. So, the best way to shut ’em up is to rerack the vote in 2010 and kick their ass.

@chicago bureau: Yes. And the challenges were brought under the state constitution b/c the caselaw has a broader reading of equal protection than in federal 14th A caselaw. See, e.g., In re Marriage Cases in which sexual orientation was reviewed under strict scrutiny according to the California Constitution. Fed courts most definitely won’t do that per US Constitution. I’m going to go on the N.D.Cal. website today and see if I can pull off a copy of the pleadings.

@SanFranLefty: Hmmmmm…

@chicago bureau: Yeah, but if the citizens of CA were to adopt a const’l amendment bringing back slavery, the US Supreme Court would take that case with the quickness. IIRC, they have struck down state const’l provisions or amendments before.

The underlying problem (as I see it) is that like Lefty said, the 14th Am is interpreted more narrowly than CA EP cases. That said, no one in a million years would have expected the Warren court to go all rights happy like they did. He managed to get a unanimous vote in Brown. What’s the Eisenhower quote about Warren? Something to the effect that nominating him Chief Justice was a big/the biggest(?) mistake he made.

The current make up of the court doesn’t leave one with a lot of hope w/r/t EP for gays, BUT what’s the tally? Against: Roberts, Scalia, Alito, Thomas. For: Ginsburg. Could Stevens, Souter, Breyer and Kennedy (ugh) be swayed? Gotta wait to see the briefs.

ADD: I don’t think sexual orientation cases will receive strict scrutiny, although I think they should. But any higher level of scrutiny will be a win.

@JNOV: Yeah, unfortunately Romer v. Evans could indicate that they’d use rational basis review….

@JNOV / @SanFranLefty: You forget Lawrence v. Texas — intermediate scrutiny. Not strict scrutiny obviously. But better.

I gotta call a foul, however: slavery? Come on, now. People can choose to be gay, and gay people could always get married the old fashioned way. It’s true! Antonin Scalia told me so!

@chicago bureau: Hey CB, I’m loving the Burris transcript that just got released. Is anyone surprised?

“a special circle of Hell which exists solely in Lars van Trier’s head”
Yes, and easily avoided, thank God. Thanks to reviewers for tipping us off.

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