More importantly, if you really believe in a pluralistic society, you can't demand agreement on philosophical principles to enact policies, since we inevitably have people coming at politics from views of the world that can't be easily integrated in some idealized national discussion.

Instead, democracy in our country depends on silent acts. When we vote, we don't have to justify our decision; we vote silently and anonymously. When juries make decisions, they don't have to publish a justification. They just vote yes or no on guilt or liability.

That right to silence should be respected and questioning the motives behind the enactment of a policy is dangerous territory for liberals to play. It is far more fruitful to argue over the negative effects of the policy, since that factual appeal to voters is the core of democracy, while questioning voters or legislators right to act on their beliefs is fundamentally anti-democratic.

Failing to make this distinction is probably a core of the problem for liberals on "social issues." It's one thing to argue for the bad effects of criminalizing abortion or preventing gay marriage -- even reasonable pro-life and anti-gay voters can respect a counter-argument and might even listen. But when you declare the belief system that motivates them to vote that way to be illegitimate, this just encourages resentment and anger.

I strongly argue that progressives should continue fighting hard to enact pro-choice and pro-gay policies, but I think this discussion highlights why pro-choice and pro-gay court decisions are so counterproductive in leading to rage in social conservative circles.

A court decision is not a vote which social conservatives have lost, where they have to accept the silent verdict of the ballot box. Instead, they have to accept a written argument that declares their values outside acceptable constitutional thought and reasoning. In this way, courts are the political space most like the academic venue that Posner notes is antithetical to our democratic values.

So disagreements with liberal social decisions get fused with anti-elitist rage, creating a toxic populist cocktail that usually hurts liberal social causes. The passage of DOMA in 1996, following the Hawaii court decision on gay marriage, and the passage this year of the slew of state constitutional amendments banning gay marriage this year, following Lawrence and the Mass Supreme Court decision, just highlight this dynamic.

It's not that intellectual debate should not influence politics; it inevitably will, since such debate is one thing that influences people. But Posner's point is that most such debate is built on a scaffold of inherent prejudices, values and morality that cannot be ignored and should not be delegitimized. Trying to decide social issues in court inherently is an attempt to do the latter. The answer is that progressives should continue to argue and fight vigorously for their values in the cultural and political sphere, but should abandon anti-democratic attempts to use courts to short-circuit the political debate on those social issues.