Same-sex marriage might pose an unbridgeable issue between rationalist and traditionalist thinking. This article responds to Professor Wax by fitting the legislature and courts into Wax's rationalist/traditionalist paradigm. Like the traditionalist, the court must be cautious, conservative, and avoid egregious errors. The court must decide which party legal tradition already supports. In contrast, the legislature can be viewed as a conduit for rationalist ideas. Like the rationalist, the legislature can break with tradition and choose competing legal reforms that will improve society. Thus, the author concludes that the legislature, not the courts, should decide same-sex marriage issues because when courts base their decisions on equality rather than tradition, it risks resulting in errors that can be difficult to remedy.
Traditionalism and Rationalism in the Courts,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol42/iss3/20