Long-time readers of this blog know that I plain don't like George Will. There isn't much space between him and the farthest right on substance, but he's usually held up as a "true conservative," a "respectable conservative," or an "intellectual conservative," based on the fact that he goes to the right cocktail parties and doesn't talk about God too much when he's discussing politics. Other than that, he's a extremist liar like the rest of the right-wing, except he wears glasses and could effectively play a professor, should they ever make another American Pie.
He has a column in the Washington Post and appears every week on This Week, a Sunday morning gab fest, and he's usually so misinformed it's embarrassing to the idea of an American public discourse.
His column today is no different, where he takes on one of the briefs in the suit to overturn Prop 8. Noticeably missing from his column are the arguments presented in any of the plaintiffs; he describes only California Attorney General Jerry Brown's brief against the measure and doesn't really seem to have read anything more than the WorldNetDaily summary of the substance of it.
Of course, far be it for anyone to criticize George Will's knowledge of Californian constitutional, statutory, and common law... he wears spectacles and has read the Federalist Papers!
The crux of George Will's argument is that the will of the people shouldn't be overturned by the supreme court of the state. Since we live in a society of laws, then the people's law should stand. Of course, the process by which it was passed should never be examined, nor should constitutional law be discussed, because this is a society of laws, you know, which means that any interpretation of law that a court engages in is an "unassailable tyranny of a minority."
Make sense? Well, only if you buy into the "judicial activism is any court decision I don't like" mentality of the right.
This rhetorical tactic parallels (isn't the same, and I'm not commenting on the topics this topic was used for) the argument often made against ending against ending racial segregation - and still used by racists to revise the history of the Civil War - the state rights argument. For respectable racists, coming out and saying that they opposed racial integration, at a certain point, became unfashionable. So they devised an entire discourse around the idea of states' rights, saying that it wasn't integration they were against, just the idea of the federal government telling Arkansas, Mississippi, and Alabama what to do. The code language became so effective that all Ronald Reagan had to do was mention the phrase "states' rights" to get the support of racists behind his 1980 campaign.
I'm seeing the same dynamic at play now when it comes to "judicial activism." Slowly, the establishment is coming around to the idea that just saying that queer people are inferior is bad, so instead of being against same-sex marriage, respectable homophobes like George Will are just against the only means by which it's passed. Or, in California's case, reaffirmed.
It's a ruse, it means nothing, since if courts were generally deciding in favor of conservatives (which they do far too often when it comes to workplace and labor disputes), George Will wouldn't be complaining one bit.
But George Will is a special case, because he's just so wrong so often, and yet he tries to appear "educated" and "intellectual" and "literate." Consider:
But Brown's reasoning would make California's Constitution subordinate to judges' flights of fancy regarding natural justice. Judges could declare unconstitutional any act of Constitution-revising by the people.
In the universe those of us not named George Will live in, that's not true at all. California has two systems to change the constition: an amendment process, which is what was used in prop 8, and a revision process, which is meant to be for more profound changes to the constitution. In fact, there's another case before the California court asking to overturn Prop 8, which the NCLR is working on, that says that it should have gone through the revision process instead of the amendment process.
I know that not everyone understands that distinction, and someone who lives in D.C. probably doesn't have any reason to understand that distinction, but you'd think that before he inserts himself into an argument between the Attorney General of California and the Supreme Court of California that he would have taken just a little time to inform himself of the laws in that state?
Not only that, Jerry Brown's brief says that the revision process would have been fine for Prop 8:
Brown caveats his assertion to a limited degree. He notes that the question of whether there is a natural rights limit on revising the state constitution is not before the court. In other words, if proponents of a revision take it through the longer process, which includes approval by the legislature, then there would be no bar to curtailing even a fundamental or inalienable right. He also asserts that if a compelling justification existed, i.e. a curtailment was needed to further essential aspects of governmental power, perhaps the power to quarantine infectious persons during an epidemic, for example, that also would be permitted.
That Will doesn't understand California law is no surprise, and isn't that bad. But that he would mischaracterize Jerry Brown's argument, hyperbolically claiming that nothing could ever change the constitution if he's right, is just plain silly and should have been caught by the Washington Post's editors.
Then the perfesser gives a little history lesson:
In 2000, voters passed Proposition 22, enacting a law stipulating that marriage is a heterosexual relationship. Last May, California's Supreme Court struck down the law on the ground that there is no "compelling state interest" in not recognizing same-sex marriages under the constitutional clause guaranteeing "equal protection" of the laws. Opponents of same-sex marriage quickly gathered sufficient signatures to place on the November ballot the amendment to the constitution.
That simply isn't true. The signature-gathering process for Prop 8 (then known as the "Protect Marriage Initiative") started in 2007, and the right was finished by April. The court then decided in May, and the state began recognizing same-sex marriages in June.
It's a simple fact, which, again, the editors at the Washington Post should have caught, but it's not completely unimportant. Here's a bit more from George Will's column:
If, however, the conversation is truncated, as Brown urges, by judicial fiat, the argument will become as embittered as the argument about abortion has been by judicial highhandedness.
That myth about abortion, that Protestant fundamentalists were idle on the issue until Roe v. Wade was decided and then they sprang into action, is completely untrue. It's true that before Roe most conservative Protestants considered abortion a non-issue, something that concerned Catholics and not many others, but most Religious Right leaders didn't care about Roe either. Some even praised the decision.
It wasn't until several years after the decision that the Religious Right started caring about abortion, specifically because racial segregation began to lose its power to get people riled up against the government. It had nothing to do with the decision, but this myth is central to the way conservatives talk about abortion because it delegitimizes the process through which it was passed.
Which is why George Will fudged with the timeline concerning marriage in California - he wanted to make it seem like Prop 8 was part of the backlash against the California supreme court decision that found in favor of the gays. That way, it looks like the people who ran that ballot measure were more mad at judicial activism than they were just homophobic, and it allows them to paint themselves as victims.
Will also makes this claim which contradicts the rest of his column entirely:
Passing laws by referenda is an imprudent departure from the core principle of republican government -- representation: The people do not decide issues, they decide who shall decide. But the right of Californians to make laws through the direct democracy of referenda is as firmly established as it is promiscuously exercised.
Wait, I thought supreme court justices were appointed by the governor in California. Wouldn't that mean that they were appointed by an elected official, or, to borrow his language, the people didn't decide who sits on that court, they decided who should decide.
And isn't the whole point of the NCLR lawsuit that the state legislature should have approved Prop 8 before it went to the people because it took away a fundamental right? Using Will's words again, one of the suits here would have enforced the idea that the people do not decide issues, they decide who shall decide.
One would think that, based on that paragraph, that he would have written a column in support of the NCLR's lawsuit, instead of opposed to Jerry Brown's.
But logic isn't important here, since George Will, like any other homophobe, isn't comfortable with the idea of two dudes or two ladies getting hitched, and he's looking for any respectable reason to oppose it.