In two cases last week, lawyers urged the Supreme Court to respect the democratic process by upholding bans on legal recognition of gay marriages. But Senior Editor Jacob Sullum says only one of those bans can plausibly be portrayed as representing the will of the people. Proposition 8, the 2008 ballot initiative that overturned a California Supreme Court decision legalizing gay marriage, reflected popular opposition to what was perceived as arrogant meddling by unelected judges. Although the federal Defense of Marriage Act was driven by a similar populist impulse, Sullum says, in practice it frustrates the will of the people in states where voters or their elected representatives decide to treat gay and straight couples equally.
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