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Is It Legal—or, Who’s the Victim?

One of the more intractable aspects of sexual politics today for traditionalists is the emergence of the courtroom as the arena for settling every debate. Even when they have a democratic majority, not to mention centuries of sexual-marital mores, on their side, the contrary will of one-to-five politically-appointed individuals can prevail. Of course, judicial activism is an old problem, undemocratic and arbitrary, placing monumental decisions in too few hands. But there is another problem, an indirect one that follows precisely from critics taking seriously the courtroom’s power. We could call this problem the “legalization” of debate, meaning not whether something is legal, but instead the conversion of moral, social, religious, and other dimensions of an issue into legal, or legalistic, terms, or at least the neglect of them because of a focus on what the judges will say.

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