Why is it that people think that same-sex marriage should be decided by voters because it doesn't make sense that the rights of a minority can be determined by the majority?

Answer 1

Because that is what a democracy is. Rights are determined by the majority of the people, because it is is majority of the people that actually exercise most rights in the first place. This issue is also why womens rights and slavery took so long to get attention. Although women and slaves may have outnumbered the general public, they still didn't have an impact because what they had to say was not beneficial to the government at the time. Just like today, although gay rights movements are prevalent in many states, it doesn't have a big enough impact on the government yet for people to take it seriously. In a country with so much "freedoms" it is really amazing how much people do not get to be free. fight for rights, people!

Answer

(Unfortunately the foregoing answer is a bit misguided and ignorant of constitutional history.)

Conservatives tend to object to "judicial activism" when court decisions take more liberal positions, but they tend to remain silent when conservative judges commit "judicial activism" themselves. That said, conservatives get up in arms when judges argue, as you point out, that minority rights are protected by the Constitution and other laws to prevent any "tyranny of the majority," which is a fundamental component of the constitutional system that the Founding Fathers created, and that there may be cogent reasons for judges to force or allow same-sex marriage to take place.

(Many conservatives forget that democracy is notunlimited and that, to function properly, minority rights must be guaranteed and other limits on freedoms are both necessary and desirable, cf. limits on free speech, etc.)

An argument that undermines this conservative position, however, is that, when same-sex marriage is introduced by means of legislative action, it is more "valid" since you can't blame "activist" judges, but the people's voice has acted through legislative process. Even proponents of same-sex marriage will concede that the best legal situation for same-sex marriage is when legislatures act to allow it, rather than courts. This doesn't mean that courts are necessarily wrong when they do allow it--but court decisions can be appealed and stayed, etc., so it's much messier than if a legislature takes action.

As we have seen with New Hampshire and New Jersey, as well as with domestic partner registries in many other parts of the country and with same-sex partner rights in places like California, etc., the United States is in fact slowly moving in the direction of legislature-sanctioned same-sex marriage (it is evolving here in stages). Conservatives realistically have only 10-15 years to warm up to legislature-sanctioned same-sex marriage, which will likely be ubiquitous by then.