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.” I would contend, however, that this analogy is problematic, that the civil-rights movement in fact provides scant precedent for the same-sex marriage movement’s striving for victory through judicial activism. Here my concern is not with the important moral differences in the cases. (It is not at all clear, after all, that legal “discrimination” that prevents same-sex marriage presents anything like the moral concerns raised by racial segregation; this moral difference has been ably explored by others.) Rather, I will address the ways the two movements differ in relation to the aforementioned principles of democratic and constitutional legitimacy. My argument is that even if one concedes, for the sake of argument, that the civil-rights movement relied in some measure on judicial activism, the same-sex marriage movement is nevertheless relying on it to a far greater extent and in a more extreme form. My hope is that these considerations will convince even proponents of same-sex marriage to question whether it should be sought by such means.

Same-Sex Marriage and the Civil-Rights Movement: A Problematic Analogy « Public Discourse

A fascinating read.