One of the arguments against Same-Sex Marriage that I’ve encountered, specifically addressing the decisions of the judiciary that seem to contradict the will of the people is “this isn’t for the courts to decide, let the people decide.”
I want to mention something that I’ve mentioned before and discussed with people, but I think is worth repeating.
The role of the constitution (and by extension, the judiciary) is to protect the minorities that can’t get protection for themselves because the majority would never vote for it. Yes, it’s entirely true that the majority of people in America might oppose same-sex marriage. That doesn’t make it right. And that doesn’t mean it isn’t for the judges to decide. Whether or not the Constitution does (or ought to) protect homosexuals and their right to marry is a separate question. But, assuming for the sake of this point that it does, then the will of the majority is irrelevant.
At one time or another, the majority of people in America thought it was a good idea that black children and white children would go to different school. If there had been a referendum, that would have been the outcome. However, the Supreme Court decided that “Separate But Equal” was not equal, etc. etc. Brown vs. Board of Ed, etc. you all know the story. The fact is, there are certain rights that are protected by the constitution regardless of the will of the majority. Despite the will of the majority. That’s the whole point. Maybe there were people in 1954 that said that the Supreme Court had no business integrating public schools, that they should let the people decide. And those people would be wrong. The same way they are wrong today. The Supreme Court (of the US or of California or wherever) has the right, nay the obligation, to decide what’s right for the minority in respect of the constitution despite the will of the majority. That’s the whole point. We ignore the will of the majority to protect the minority.