Majority rule is not unlimited. It is limited by what the government has the power to do. Consequently the majority cannot, in general, vote to seize the homes and accumulated savings of people. Leaving aside exceptional cases, government cannot mandate how parents how should raise their children. These kinds of power lie outside the scope of government in a free society.

Majority rule is also circumscribed by individual rights. But these are the rights clearly specified in the Constitution. A majority of citizens cannot prevent an individual from voting because voting is a basic right, as is the right to freedom of speech and freedom of religion, and so on. The state is constitutionally prohibited from undermining these enumerated rights.

Now the high court of California has made gay marriage into a right that is immune from restriction by the majority of citizens in the state. A referendum outlawing gay marriage was passed with the support of the state's voters.  How, then, can a court invalidate the referendum and over-rule the will of the people? Basically, through a kind of legal fraud. The court has to pretend that there is a right to gay marriage even though it is nowhere evident in the state constitution. Read the constitution, hold it up to the light, squeeze lemon juice on it--you won't see a right to gay marriage in there. It is simply not an enumerated right, nor is it a right that can be clearly derived from other enumerated rights.

In the past, some politicians have allowed courts to do their dirty work when it comes to issues like abortion, pornography, prostitution and gay rights.  In this way, they can advance their permissive agenda without having to take political responsibility for voting against the values of a majority of voters.

I know that there are gays who desperately want gay marriage, because of the social legitimacy it confers on their relationships.  In a way I sympathize with them.  But at the same time I'm sad for constitutional democracy, which suffered a grievous blow at the hands of the California high court.  In overturning the California voters' ban on gay marriage, the state's high court argued that homosexuals are a special class, somewhat similar to blacks and women, and deserve special judicial scrutiny for the protection of their rights. At the same time the court insisted that gay marriage must be allowed because gays deserve, no less than anyone else, the equal protection of the laws.

This argument is dubious.  Blacks were slaves and suffered historical oppression in a way that neither women nor gays can match. So the idea that these groups are the "new blacks" is an insult to blacks. Besides, whether there is an innate disposition to homosexuality or not, it's hard to deny that homosexuality constitutes a choice and a lifestyle. Whatever the orientation, one still has to choose to act on it. By contrast, blacks and women don't have any choice because race and gender are not a lifestyle.

Now let's turn to the issue of equal protection. Clearly this means that people who are similarly situated should be treated in the same way. So men and women, blacks and whites, straight people and gays, all have the right to vote, the right to speak their mind, and the right to marry. States, acting through their representatives and reflecting the values of the voters, have the constitutional authority to define what marriage is. Traditionally marriage requires: a) two persons b) both of them adults of legal age c) unrelated to each other and d) one male and the other female. Now here are some interesting possibilities. A 10 year old demands the right to marry, charging that the age requirement discriminates against him. Or a fellow wants to marry his sister, contending that the incest prohibition violates the equal protection clause of the Fourteenth Amendment. Or a Muslim seeks four wives, asking why polygamy among multiple "consenting adults" should not be allowed the same legal status as the traditional two-person arrangement. In more imaginative scenarios, a fellow might want to know why the marriage definition is so species-specific. This guy wants to marry his dog on the grounds that "I love my dog and my dog loves me." Why don't all these people have valid equal protection claims under the constitution?

The point here isn't that gay marriage is indistinguishable from polygamy or child-marriage. Rather, it is that gay activists want to dislodge one of the definitions of marriage but retain all the others. They want to move one of the goal posts but not the rest. But how can one part of the marriage definition be discriminatory under the laws while the other parts are not? If the male-female requirement violates the equal protection clause, so must the other requirements which also exclude classes of people. If gays are a special category, why aren't Muslims and Mormons also a special category? It seems that gay activists want a form of "equal protection" for themselves but not for other groups.

Neither equal protection nor antidiscrimination is a real issue here. Judicial tyranny is the issue, making the pretense of having justice on its side.