One of the things I’ve been watching is the trial attacking Prop. 8 in California. As you know, in November 2008, California voters, by a solid majority, passed Prop. 8, which states affirmatively that, in California, marriage is between a man and a woman. Two gay couples sued in federal court, alleging discriminatory intent. To that end, the plaintiffs have been trying to prove, through discovery and through testimony, that the people who put the initiative on the ballot had discrimination in their hearts. I’ve found these personal attacks bewildering, since it seems to me that what you really have to show is that the 54% (or so) of California voters who passed the initiative all had discrimination in their hearts.
Charles Winecoff has also been following the trial, and he’s very dismayed by the “feelings, nothing more than feelings” on display in the court room:
The curtain went up on Monday, January 11th. Olson opened the show by declaring that “domestic partnership has nothing to do with love” – essentially admitting that the two couples are seeking legal recognition of their feelings. Then the complainants took to the stand to deliver a string of what even the Los Angeles Times called “emotional accounts,” proving beyond a shadow of a doubt that non-celebrities no longer need Oprah (or Jerry Springer) to validate their existence.
First, Jeffrey Zarrillo testified that ”the word marriage” would give him the ability “to partake in family gatherings, friends and work functions as a married individual standing beside my parents and my brother and his wife. The pride that one feels when that happens.” Does he mean that, like Michelle Obama and her country, he never before felt pride being with his partner? In their nine years as a couple, did they never attend any of those events together?
If “the word” means so much, why not just call yourself married?
Similarly, when Olson asked Berkeley lesbian Kristen Perry why she was a plaintiff in the case, she replied, ”Because I want to marry Sandy [her partner, also of nine years]… I want the discrimination to end and a more joyful part of our life to begin… The state isn’t letting me feel happy. The state isn’t allowing me to feel my whole potential.” Yet “the state” never prevented Perry and Stier from making a home together, or from raising four boys in that home.
Rule number one: make yourself happy.
What Winecoff might not know is that, in California, feelings matter — at a constitutional level. Few people who aren’t lawyers (and even few lawyers) know that the California Constitution pretty much guarantees Californians happiness:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Some people are rolling their eyes at this moment and saying, “Well, I have the same right under the federal Constitution.” Au contraire, my friends. Our United States Constitution, wisely, says nothing whatsoever about happiness as a legal right. Instead, the only mention of happiness in a seminal American document is the statement, in the non-binding Declaration of Independence, that all people have the right to pursue happiness:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
That, in a nutshell, sums up the purpose and effect of individual freedom. But it’s no guarantee that any given individual will be happy.
If you’ll cast your eye back up to the California Constitution, you’ll see something very different. Strip away the extra verbiage, unrelated to happiness, and you get this promise to its citizens from the California government:
All people are by nature free and independent and have inalienable rights. Among these are . . . pursuing and obtaining . . . happiness . . . .
Live in the land of perpetual sunshine, and you are guaranteed the right, under the law, to obtain happiness. If the state does something that makes you unhappy, well, the state had better remedy that problem.
Sadly, the California Constitution does not explain what it’s supposed to do when a given law brings happiness to some (for example, those who believe marriage is a male/female thing) and unhappiness to others (those who believe the word “marriage” is the only thing that can make their relationship a real one). I am reminded of a quotation, the source of which I can’t trace, to the effect that “The real tragedy is not the conflict of good with evil but of of good with good.” As Dorothy L. Sayers says, in Gaudy Night, “that means a problem with no solution.”