Judge Vaughn R. Walker’s ruling on California’s Proposition 8 is a good demonstration of how it is possible for the serious expert consideration of ethics and law to produce better policy-making than direct or representative democracy does:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
Gay marriage is restricted around the world not for any rational reason whatsoever, but because large numbers of voters are prejudiced and uncomfortable with the idea.
While it is encouraging when gay marriage is legalized by legislation or popular referendum, I think it is ethically preferable when courts assert its necessity. That is because the power to determine the scope of minority rights should not rest with the will of the general public. Establishing minority rights on that basis is precarious and unjust. Rather, societies that aspire to be ethical have to acknowledge the fact that the majority cannot be allowed to strip minorities of fundamental rights, and that laws that do so ought to be struck down, regardless of how popular they are.