Justice Holmes gave voice to the modern legal project when he registered the hope that “every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” In other words, an understanding of “law” made ever purer by being ever more detached from any moral content.
... What we have had, then, are judges of the left making moral arguments, and instead of showing why those arguments are spurious, the conservatives retreat to the simple report of the positivist that there was no mention of marriage or abortion in the text of the Constitution. The question of marriage offered the most notable and recent example. And yet, these deep flaws in conservative jurisprudence come into sight even more dramatically if we return to that question of abortion, and look back forty years to the briefs and the dissenting opinions that were offered in Roe v. Wade.
... The killing of the child—the gravest concern that had brought forth the law—was now displaced as the main question in the case. The harm done to the fetus was replaced with the harm visited on the people and legislatures in the separate states, as they were barred from “balancing” how much they “valued” the life of a child against the interests and convenience of a pregnant woman.
... This was the familiar response of conservative jurisprudence: to appeal to “tradition” as a way of evading that vexing question of whether the practice in question is morally defensible or indefensible. The claim was that we would find a ground of argument far less contentious, far less open to political quarreling, if we appealed to the historical record, rather than invite an argument over moral truths.
... And yet that was never enough to shake the confidence of conservative judges that the appeal to tradition is valued precisely because it delivers a ground of judgment safely distant from the need to weigh the moral justifications for acts of legislation.
The judicial refusal to address the moral truth of an issue surrenders the most powerful and effective weapon, raising the White Flag before the battle even begins. While other considerations may of course be present when adjudging an issue, moral truth is always paramount and must always have the final say. The refusal to acknowledge, defend and judicially enforce moral truth is the death blow for any culture or civilization. We often hear that the state "cannot legislate morality" ------ Hogwash. Whether we admit it or not, most laws do in fact legislate moral truth. Universal laws against rape, murder, theft, assault, etc. all legislate moral truth.
Increasingly bizarre judicial pronouncements are the inevitable result of a willful abdication of moral truth.