At Public Discourse, Carson Holloway questions the analogy between Brown v. Board of Education and a future court case to legalize same-sex marriage:
In Brown v. Board of Education , for example, the Supreme Court delivered an important victory for racial justice by striking down segregation in public education, even though that decision could be characterized as lacking democratic legitimacy insofar as it overturned practices that enjoyed majority approval in the states in which they arose, and lacking constitutional legitimacy insofar as it depended on overturning a long-established interpretation of the Constitution. According to this argument, a key victory of the civil-rights movement may have lacked certain kinds of procedural legitimacy, but it was nevertheless right, and is today universally approved, because it enjoyed a higher moral legitimacy arising from its vindication of the fundamental principle of equality. Thus the judicial victories that the same-sex marriage movement seeks would possess the same kind of legitimacy as the Brown decision, which nobody would deny is one of the finest achievements of American jurisprudence. Put simply, the advocates of same-sex marriage can respond to the charge of judicial activism as follows: So what? Reliance on judicial activism is as American as the civil-rights movement.
How does Holloway respond? Read the rest here .