Nebraska Law Review
In 1995, Utah became the first state to pass a bill prohibiting the recognition of same-sex marriages performed in other states and nations. Thereafter, in 2004, Utah voters approved a ballot referendum on Utah Constitutional Amendment 3, which defined marriage as the legal union between a man and a woman and which restricted unmarried civil unions. This referendum was approved by 65.9% of those who voted on it. That is, 593,297 Utah citizens (of the approximately 900,000 who voted) voted to approve the amendment.
Then, in March of 2013, three couples filed suit in the United States District Court for the District of Utah, arguing that Amendment 3 violated the Due Process and Equal Protection Clauses of the United States Constitution. On December 20, 2013, the court ruled the amendment was unconstitutional, and, thus, one man overturned the vote of nearly 600,000 people.
Does it really make sense that one person should overrule a whole state? If so, when does that make sense? These questions warrant serious consideration, and more people should be troubled by cases like this and by the rules that courts often take upon themselves. This is because, in the end, courts risk losing legitimacy if they deviate too far from perceived social and cultural norms when addressing legal issues. Such a limitation is fundamental to the nature of the American legal system
By examining American mechanisms of law enforcement, the relationship between the law-giver and the law-follower, and the implications of that relationship for courts and judges, it becomes clear that courts must be ever mindful of their role in American society. They must remain always cognizant of social norms and mores, and that their failure to do so is to the peril of their own prerogatives and legitimacy.
Chad J. Pomeroy, Our Court Masters, 94 Neb. L. Rev. 401 (2015).