Are you qualified to have an opinion about gay marriage?

Generally, I really like lawyers as sources—well-informed, straightforward, not a lot of bullshitting. More than most professions, they understand the importance of a vigorous debate and dissenting opinions.

But not always. A friend directed me to Salon.com legal columnist Glenn Greenwald, whose comments today on the California Supreme Court's ruling in favor of gay marriage could not have been written in a more condescending tone:

(1) 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.

Translation: have exactly the expertise I have, read exactly what I've read, or you're irrational. Judicial opinions are religious texts, the bar is a priesthood, commoners do not understand our rituals and must remain silent.

I know Greenwald is constructing a pre-emptive argument against his right-wing opponents, who will decry "judicial activism," but in doing so he breezily embraces some pretty anti-democratic language. In the name of equal rights, Greenwald has written a brisk defense of hierarchy.

To have an opinion, in Greenwald's opinion:

One must have read and understood the key cases on which the Court relied, such as Perez v. Sharp (1948), Brown v. Merlo (1973) and numerous others. For reasons I've written about before, anyone who criticizes the Court's decision without reference to California constitutional law is engaged in rank sophistry...

Blah blah blah. He goes on. You get the point. Glenn Greenwald is super-smart, and his pack of LSAT flash cards had the word "sophistry" in it.

But, of course, this is an inherently political issue; whether social change should come from the ballot box or the Legislature or seven guys who chill out on McAllister Street is a decision that everyone can, and should, have an opinion about. If the decision had been 4-3 against gay marriage, would Greenwald tell everyone at the Human Rights Campaign to shut up until they read Perez v. Sharp?

Comments

[kk]

On the other hand, faced with such a politically and emotionally charged topic, perhaps a reminder (albeit a bit condescending one) that legal decisions are made within a case law framework, and to try to have some case law basis for one's counterargument is not necessarily a bad thing.

[Joe Mullin]

Fair enough. The reminder that there's a case law background is worth making. I should note that Greenwald posted an update that responds to my comments & others.

I don't think he really meant to say others shouldn't join in the debate (ultimately his blog and work as a pundit himself rely on the controversy). But it did come off sounding that way.

I think what interested me here is how easily the language of expertise slips into the language of jargon, hierarchy and exclusion. ("One must have read..", "anyone who criticizes..")