Ramesh Ponnuru disagrees with my disagreement with what he describes as his “hasty sketch of an originalist argument against court-imposed same-sex marriage.” He does so politely, so it almost pains me to note that his defense is just as empty as his original post.

In his initial post on this matter, Ponnuru wrote that last week's Iowa Supreme Court decision “has no democratic or constitutional legitimacy” because “nobody can plausibly claim that Iowans meant to ratify same-sex marriage when they approved a constitution including equal-protection language.”

The first point I made was that nobody can plausibly claim that Americans meant to ratify integrated classrooms when they approved the 14^th Amendment, either. So, by Ponnuru's logic, Brown v. Board of Education “has no democratic or constitutional legitimacy.” At this point, Ponnuru can either take the position that Brown was an illegitimate decision, or he can retract his initial post. Doesn't really matter to me which he choses, but those are his options.

After a paragraph in which he neither squares his position on the Iowa case with Brown nor comes out against Brown, Ponnuru writes:

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.

That may have been Ponnuru's point, but that isn't what he wrote. Maybe he wrote too quickly. In any case, he simply didn't then -- and doesn't now -- indicate what conditions that do not apply in the Iowa case must be met in order for courts to set aside laws. Unless he does so - and explains why those conditions are consistent with Brown, states clearly that he thinks Brown was a mistake, or retracts his original post - there really isn't much more to discuss.

Actually, even if he does so, we probably still won't find much room to agree; I tend to think that “equal protection” means “equal protection,” not “something else that we might imagine that people meant that falls short of either 'equal' or 'protection.'” But at least his case will, perhaps, make more sense than it does now.