Prop. 8 and judicial oversight

The recent court decision overturning California's ban on same-sex marriage (proposition 8 on the last ballot) has raised the ire of many in the religious opposition.  Previous entries on this board have pointed out that the base of this thinking lies in religious intolerance masquerading as tolerance:  my religion dictates what you can and can't do, now respect my religion.  As a more legalistic argument, opponents are calling this ruling anti-democratic, since Prop. 8 did pass an election: 

Thus, a single district court judge cast aside current law, ignored precedent, and exalted his own secularist morality ahead of the moral judgment of a majority of voters in the most populous state in the union.

But the role of the judiciary in protecting minorities from the majority is well-established.  And the religious have benefited from this as well.  In 1940 the Supreme Court ruled that Jehovah's Witnesses expelled from schools for refusing to pledge allegiance to the flag were out of luck and would have to seek remedy in elections by changing the law.  But the Court reversed this in 1943 (in the middle of WWII), ruling that a minority could expect protection under the law.  And, of course, the Mormons faced persecution in the nineteenth century for their beliefs about subjects including marriage.  They were not protected by the courts, for which there is still bitterness. 

On the subject, a group member writes:

Yes, opponents of gay marriage often cite the fact that a majority of the citizens of various states have voted for a ban against it, and that, in their view, no "activist judge" has the right to overturn the will of the people.

What ignorance of the Constitution. The judicial branch was designed to serve as a protector of individual and minority rights. Our judges, especially the appellate and supreme courts, are supposed to review laws passed by the people's representatives in Congress, and, among other things, decide whether these laws violate the basic principles of our supreme law, the Constitution. That is their primary function.

In any elementary course on American government we teach that the legislative branch makes our laws, the executive branch makes sure they are carried out (executes them), and the judicial branch interprets our laws. Why do we need judges in the first place? Because the law is complicated, and needs experts to examine it carefully and to interpret it in light of the Constitution. If all we need to determine what is legal is to hold a referendum of popular opinion, why have a Constitution at all? Why have judges?

Judges are supposed to be independent in order that they be impartial. That's why federal judges are appointed for life: so they won't have to fear for their jobs if they make decisions that are constitutionally sound but unpopular, and they won't be badgered out of office by the rule of the mob.

One of the worst things that has happened to the judiciary in the U.S. is that in many state systems judges are elected rather than appointed. The Constitution originally intended for the legislative branch to be responsive to public opinion, but for the judicial branch to be impervious to it. When state and local judges are elected by the majority they tend to promise to be "tough on crime," because that's what the public wants to hear, and to make fewer and fewer unpopular decisions based on principles of fairness, understanding, wisdom, and discernment.

Unfortunately, these finer points of law -- that are not difficult to understand; they can be taught in a single one-hour class -- are beyond the comprehension of most of our native-born citizens, who are largely ignorant of our democratic process, and who would never be able to pass the test on U.S. Government that we require of our naturalized citizens.