I find Eskridge’s argument for recognizing homosexual marriage quite persuasive — but only as an argument addressed to a state legislature. His arguments for recognizing a federal constitutional right to same-sex marriage, which are pressed in the last two chapters of the book, are unconvincing. They are good lawyers’ arguments — cleverly distinguishing same-sex marriage from polygamous and incestuous marriage; building bridges from the Supreme Court’s decisions striking down state laws against interracial marriage and allowing prisoners to marry. . . .; and, of course, balancing the benefits of homosexual marriage against the costs to important state interests and finding that the former predominate.

There is nothing wrong with these arguments, except — a crucial except, however — the tacit assumption that the methods of legal casuistry are an adequate basis for compelling every state in the United States to adopt a radical social policy that is deeply offensive to the vast majority of its citizens and that exists in no other country of the world, and to do so at the behest of an educated, articulate, and increasingly politically effective minority that is seeking to bypass the normal political process for no better reason than impatience, albeit an understandable impatience. (Americans are an impatient people.) A decision by the Supreme Court holding that the Constitution entitles people to marry others of the same sex would be far more radical than any of the decisions cited by Eskridge. Its moorings in text, precedent, public policy, and public opinion would be too tenuous to rally even minimum public support. It would be an unprecedented example of judicial immodesty. That well-worn epithet “usurpative” would finally fit.