Jamison Foser makes two criticisms of my hasty sketch of an originalist argument against court-imposed same-sex marriage. The first is the familiar claim that originalism (or some other school of thought about the judiciary that reduces its heroic reformist role) is incompatible with Brown v. Board of Education and therefore defective. If that’s really true–and there are serious scholars, such as Michael McConnell, who have argued at length that the result of Brown can be squared with originalism–I don’t think it is as fatal an objection as Foser imagines. The world did not begin in 1954. Judicial restraint may have precluded Brown, but also precluded the Civil Rights Cases of 1883.
Second, Foser believes that I have refuted my own argument in observing that it is perfectly legitimate for courts to set aside statutes when deciding a case forces them to choose between ignoring a statute and ignoring a provision of a constitution. My original item was short, but I think Foser may nonetheless have read it a bit too quickly. My point was that it can be appropriate for courts to set aside democratically-enacted laws, but only under conditions that do not apply in this case. I was showing, in other words, how opposition to the Iowa court’s marriage ruling is compatible with belief in judicial review.