[larsonf]

Absolutely. These things are incremental and at each step we try to be as fair and realistic as possible.

But what do you think about this?

I think there's something interesting in there, though. In some ways, this argument really acknowledges that laws really are tethered to reality. It's not so much a matter that we can simply will a legal situation into reality. What's fascinating, though, is that this idea that things are sort of stuck in the realities of the past-- that people really do like to be monogamous, that kids really are something that people do, that inheritance issues are going to be there--is a very conservative position relative the progressive approach, which really does sort of say 'we can decide how to structure society'. I mean when was the last time you heard someone say that 'we can educate this demographic because there's 200,000 years of historical precedent'.

I don't care either way. But I'm just noting that there is a profound conservatism within the push to state-defined marriage. Why now want to respect historical precedent as more or less permanent and yet disregard tradition elsewhere?

[jacques_chester]

She mentions Hayek in passing several times, which is worth noting. He wrote quite extensively about the difficulty of replacing "spontaneous order" and evolved institutions with rational designs conceived from scratch.

The basic problem is that the law is complex because human relations are irreducibly complex; and that the law takes human relations as its problem domain.

This is essential and not accidental complexity.

Those of us in STEM professions are good at reducing complexity, but a lot of the time we deal with complexity by simply discarding details in favour of abstractions that cover enough of reality that the cost of the mismatch is below the cost of building a more accurate model.

Lawyers are rarely able to exercise such discretion. The courts are obliged to give definitive answers.