http://origin.mercurynews.com/saratoga/ci_8459476 So the court is ruling on a contest to a voter-backed ban on gay marriage. marriage / civil unions = inequality and a different protection is given, A technical definition on what is being discriminated against to compare it to race and marriage. Not on a question on how we are created, rather how we assign one set of rules and another set of rules. White school / black school = inequality and a different protection is given. 1946 argument is being invoked, where CA court ruled on calling a ban on inter-racial marriage as unconstitutional. BECAUSE the court gave the same substantive provisions in civil unions. The argument is that the very nature that the same provisions are given, and they are calling it something else raises an inequality issue. Words matter. The case in CA court on 1946 - did not call inter-racial marriage something else other than marriage. they called in marriage. Under that definition...it fits as a civil rights. Lawyers that are arguing for gay marriage state there is no evidence that a person choses to be gay or not - and it has no legal relevance with regard to their constitutional right to marry others. It's the entitlement that courts recognize their right to marry under the states constitution. That there is an evolution of the definition of marriage, that women were once property in marriage and that evolved. They are going with the choice to marry. Technically the court cannot thumb that down, if they can prove the technical definition of marriage is unequal by giving it the same provisions and calling it something other than marriage. They didn't just challenge it as civil rights, being denied the right marry, courts threw out. However when presented with the argument - no you are giving the same rights and provisions that marriage has and are calling it something else. That makes it a civil issue about inequality.