On the Limits of Courts - While we wait on Massachusetts to decide what to do, here's some thoughtful commentary on the SSM issue to consider:

Judge Richard Posner, writing in The New Republic last week, criticized the use of legal arguments to force states to include gays under existing marriage statutes. He identifies a fundamental logical flaw in these arguments: that there is really no conceptual barrier, once gays are included, to extending marriage to any number of other prohibited relationships, like polygamy and adult incest. Posner posits that such distinctions can legitimately be made, but only by legislatures. When courts undertake to move the line, they merely dress up the exercise of bald judicial discretion in legalistic reasoning. The courts are in fact making political decisions.

The worry is that in Goodridge, the court made the "wrong" political decision. Unlike Lawrence, which overturned moribund sodomy laws in a handful of states, the Massachusetts SJC got way ahead of the general population on this issue. No state - none out of fifty - recognizes gay marriage, and even foreign bastions of liberalism like the Netherlands and Canada have only just changed their laws on this matter. When Brown v. Board of Education desegregated Southern schools, there was a tradition in other states - on the books if not in practice - of abhoring such discrimination. Instead of "moral vanguardism" among an undemocratic judiciary, Posner argues that federalism should run its course, with states engaging in social experimentation to see if the population can come around on the issue. Then maybe some far future court could find a "fundamental right" to gay marriage, sweeping up those holdout states which undoubtedly will be the same who were the last to hold on to their sodomy laws.

Consider an example of what Posner is talking about. New Jersey is currently poised to enact the country's second comprehensive domestic partnership law. The legislature is actually doing so not because a court ordered them to. Rather they were goaded into action when a court rejected the arguments of gay plaintiffs suing to marry. This case represents, it seems to me, the best kind of result under our incremental, democratic and little-R republican system. The court, while sympathetic, was unwilling to undertake a massive social re-engineering, but the legislature is doing the right thing anyway. Not that the plaintiffs' actions were in vain: I admit that a real threat that the court might act was probably important in motivating legislators. No one should argue, however, that rule by judicial fiat is preferable to democratic change. Luckily, judicial deference in this case did not mean the continuation of an inequitable status quo. I guess we'll never know what would have happened if the Massachusetts court had followed the same pattern.