Feelings, nothing more than feelings — the Prop. 8 trial in San Francisco

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.”

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Comments

  1. socratease says

    Gun owners tried that strategy with the courts, pointing out that the Constitution states: “All people are by nature free and independent and have inalienable rights. Among these are … defending life and liberty, … protecting property, and pursuing and obtaining safety… .” which requires the means to attain, i.e personal arms.  The courts shut that argument down, saying in effect that the preamble is just a statement of general intent with no force of law.  Funny how things change when the judges have a different class of plaintiff before them.  One might even say that the judges are discriminatory.

  2. jj says

    So – why are these two in federal court?  Seems to me that the standard there is a much less  exacting one, and they may well lose.  They’re in the wrong venue.

  3. says

    I don’t know why it’s in federal court.  The California constitution is more favorable to them, as would be the California Superior Court.  If they’re bringing it solely under federal law, you’re right, jj, that the federal standard is harder.  I simply haven’t paid attention to the procedural posture.

  4. 11B40 says

    Greetings:
    Maybe I’m just dense, but I don’t understand the “equality” concept that the homosexual activists are trying to promulgate here.
    Marriage lets a man marry a woman and vice versa.  A homosexual man can marry a woman.  A homosexual woman can marry a man.  How’s that discriminatory?  And why isn’t anyone involved in this fiasco saying this?
    Beat’s me.

  5. says

    11B, they speak more about social equality. they wish to have the same respect, in the eyes of the nation and their social circles, as married couples do.
     
    They, as activists and cannon fodder for the Left, believe they can force friends and strangers to react appropriately through government sanction and intimidation.
     
     

  6. says

    Civil unions or their equivalent were almost given to the gay activists. But the activists rejected them and demanded marriage, marriage, only marriage. Going by the Alinsky playbook, no compromises are accepted or offered.
     
    This is done for various reasons, but notably because if they accepted such a compromise, it would resolve most of the legal issues that gays are concerned about. Solving the problem, is not part of the solution to getting more power and wealth.

  7. suek says

    11B…
    The “equality” they want is to be “normal”.  They want to be like everybody else – except they want what they want – which is _not_ like everybody else.    It’s a bit like the old square circle problem – it’s impossible because it’s a contradiction of terms.  They’re trying to change the terms to force the solution.
     
     

  8. 11B40 says

    Greetings:
    One more idiotic hypothetical:
    If a man enters into a legal marriage contract with a woman, and then the state redefines that contract to include homosexual contracts, has the man who married a woman any rights to protect his contract from, let’s call it, dilution.  I would argue that the state has now unilaterally and in order to appease a specific activist political minority substantially changed the nature of the contract after the fact and the man is now involved in a contract without his agreement.   Would I be entitled to void the contract?

  9. March Hare says

    “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.”
    Okay, I’m confused.  Wasn’t there a window where gays & lesbians could get legally married?  And those marriages was not invalidated by the passage of Prop. 8.  If getting married was so darned important to Perry, why didn’t she and her partner marry then?
    To me, these folks aren’t interested in “marriage.”  They have an agenda and won’t be stopped until it’s done.
    I’m also bemused, if that’s the correct word, by this sudden interest in marriage.  Isn’t marriage a patriarchal system designed to turn women into chattel?  Isn’t it a relationship of power and inequality?  How do lesbians, many of whom are radical feminists, reconcile this?

  10. Charles Martel says

    “Isn’t marriage a patriarchal system designed to turn women into chattel?  Isn’t it a relationship of power and inequality?  How do lesbians, many of whom are radical feminists, reconcile this?”

    Faun: “Oooh, Butchette, look at what I found.”

    Butchette (snarling): “What, you little lipstick lesbo worm?”

    Faun (nonplussed): “The Patriarchal Pants of Power!”

    Butchette: “Whoa! Where’d you find those? I thought I’d hidden them well.”

    Faun (ever the coquette, hand saucily on her hip): “I have my ways, oh, bullish one!”

    Butchette: “So, what do you propose?”

    Faun: “Simple, my muscled mistress of motorcycle-y mayhem! I will don the pants of power, assume the role of Dadbrohusbandsonrapist and tickle your engorged fancy until the cows clone home!”

    Butchette: “Aaaaaaaah. I will let you tingle me as you wear the oppressor pants, and after I have taken my joy, I will have my vengeance!”

    Faun (blushing): “When you do, should I be the brainwashed Girl Scout or the Baptist housewife?”

  11. BrianE says

    “LOS ANGELES – The online dating service eHarmony has agreed to settle a California lawsuit that claimed it discriminated against homosexuals.
    Under a proposed settlement filed Tuesday in Los Angeles Superior Court, eHarmony will link its straight and gay Web sites and allow people to use both without paying double fees.”
     
    The radical homosexual (and straight social anarchist) agenda has little to do with marriage and all to do with forcing a faux affirmation of their lifestyle.
     
    They are holding society in a hammerlock, yelling “now say we’re the same…say it now, we’re the same as you”.
     
    After passing a constitutional amendment defining marriage as between a man and a woman several years back, Washington state just passed the commonly referred to “everything but marriage” act. I suspect this is how the public at large would like to resolve the issue.
     
    The homosexual radicals smell blood in the water, I suspect, and are going to accept nothing less than society crying “uncle”.
     
     

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