There is no legal commentator today more fundamentally dishonest than Glenn Greenwald. And the tricks of his dissembling trade were on full display following the California Supreme Court’s decision striking down two state laws that defined marriage as a union between a man and a woman. Desperate to defend the narrow 4-3 decision Greenwald starts by quoting the majority opinion:
[O]ur task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership, but instead only to determine whether the difference in official names of the relationships violates the California Constitution.
For Glenn, this paragraph proves that the majority’s decision was in no way influenced by their own policy preferences. But the paragraph reeks of overcompensation. Isn’t it always the job of the California Supreme Court (and all appellate courts) to put their policy preferences aside and stick to the law? If so, then why the need for this paragraph? The only reason to insert this language promising to stick to the law is because the majority knows they are about to completely ignore it in favor of their own policy outcomes.
Glenn then continues in his signature bullying style:
No rational person can criticize the Court’s decision here without having at least a basic understanding of the governing California precedents. Anyone who condemns this ruling without having that understanding will be demonstrating a profound ignorance of — and contempt for — how the law works.
Put another way, those who criticize the Court here of “judicial activism” without bothering to familiarize themselves with relevant California constitutional law are themselves engaged in the purest, and lowest, form of “judicial activism.”
What Glenn fails to mention here is that one does not have to look very hard to find people with “at least a basic understanding of the governing California precedents” who are willing to call the majority decision “judicial activism.” In fact, such opinions are included in the very document Glenn links to in the form of the decision’s two written dissents.
Associate Justice Marvin Baxter was born in Fowler, California, graduated from the Hastings College of the Law, and has practiced law in California ever since. One might say he has a better understanding “governing California precedents” then Greenwald could ever hope to. Baxter writes in dissent:
Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners. But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestall that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.
Baxter was joined in that dissent by Associate Justice Ming W. Chin, who after serving for two years over seas as Captain in the U.S. Army, has been practicing law in California since 1972. Also dissenting, Associate Justice Carol Corrigan begins by expressing her own policy preference for gay marriage, but goes on to write:
The principle of judicial restraint is a covenant between judges and the people from whom the power derives. It protects the people against judicial overreaching. It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.
If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.
Refusing to even acknowledge these two well reasoned opinions , Glenn continues:
Equally misinformed will be anyone arguing that this is some sort of an example of judges “overriding” the democratic will of the people. The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their “marriage” laws, but both times, the bill was vetoed by California Gov. Arnold Schwarzenegger … Polls have found substantial support for gay marriage in California, with dramatic trends toward favoring gay marriage. … Thus, even leaving aside constitutional guarantees (which, in a constitutional republic, trump public opinion), today’s ruling is consistent with that state’s democratic processes and public opinion, not a subversion of it.
Wow. How patently dishonest. The California Constitution affords the people two ways to perfect their will into statute. First, by passing a bill through the legislature that only becomes law after it is signed by the Governor; and second, by popular referendum. In 1971, the California legislature passed, and the Governor of California signed, amendments to the Civil Code making clear that marriage could only be defined as between a man and a woman. And then in 2000, the people of California passed a referendum reaffirming this definition. The democratic process of California clearly concluded twice that marriage required a man and a woman.
Contra Greenwald, polls do not make valid law in California and no bill can be considered law until it is signed by the Governor. How anybody can ever take Greenwald seriously after he boldly asserts otherwise is unimaginable. But Greenwald’s assault on reason does not end there. Next Greenwald argues:
The Court did not rule that California must allow same-sex couples the right to enter into “marriage.” It merely ruled that if the state allows opposite-sex couples to do so, then same-sex couples must be treated equally.
This is a distinction without a difference, because the only way that the state can avoid the requirement that it allow same-sex couples to enter into marriage is to eliminate marriage altogether. As long as the state has an institution called “marriage,” then the ruling, as Greenwald earlier concedes, “compels state and local officials to begin issuing marriage licenses to same-sex and opposite-sex couples equally.” For Glenn to suggest otherwise is, again, patently dishonest. Greenwald finally concludes:
Each time there is a court decision recognizing the constitutional rights of gay couples, all sorts of hysterical political commentary ensues.
And that’s what is great about Greenwald: even a stopped watch is right twice a day.