Epstein is an advocate of minimal legal regulation. In his book Simple Rules for a Complex World (1995), Epstein consolidated much of his previous work, arguing that simple rules work best because complexities create excessive costs. Complexity comes from attempting to do justice in individual cases. Complex rules are justifiable however, according to Epstein, if they can be opted out of. For instance, drawing on Gary Becker, he argues that the Civil Rights Act and other anti-discrimination legislation would be better if repealed. Consistent with the principles of classical liberalism, he believes that the federal regulation on same-sex marriage, DOMA, should be repealed, stating:
Under our law, only the state may issue marriage licenses. That power carries with it a duty to serve all-comers on equal terms, which means that the state should not be able to pick and choose those on whom it bestows its favors. DOMA offends this principle in two ways. First, it excludes polygamous couples from receiving these marital benefits. Second, it excludes gay couples. Both groups contribute to the funds that support these various government programs. Both should share in its benefits.
In the two cases under discussion (Gill and Massachusetts, however, both of which had been heard by U.S. District Court Judge Joseph Tauro), Epstein observed that:
To strike down DOMA, Judge Tauro had to reject all state justifications for its definition of marriage. Congress advanced four such justifications for this statute: "(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources." The Justice Department disavowed them all. So much for tradition. Its sole defense of DOMA was that it was needed to preserve the status quo until matters were sorted out politically. Given that open invitation Judge Tauro concluded that all of the justifications offered in DOMA flunked even the lowest "conceivable" standard of rationality. Religious people will surely take umbrage at his one-sentence rebuttals of centuries of tradition.
Epstein's criticism of these two decisions concluded:
Now there is no reason for principle to yield to pragmatism. We don't need a judicial precedent that will spark a nation-wide rerun of California's Proposition 8. We need courts to back off to democratic processes, imperfect as they are.
Epstein views market incentives against discrimination as sufficient to regulate the acknowledged evil, and attempting to give everyone a court hearing only encourages excessive litigation.
^"Think tank plans study of how US treats detainees". Wall Street Journal. 2010-12-17. Archived from the original on 2010-12-18. "Former FBI Director William Sessions, former Arkansas U.S. Rep. Asa Hutchinson, a retired Army general and a retired appeals court judge in Washington are among 11 people selected for a task force that will meet for the first time in early January, said Virginia Sloan, a lawyer and president of The Constitution Project."