They run against the common behavior of large institutions, which work to perpetuate themselves and to increase the scope and the degree of their power. Who would have thought it? Perhaps someday the Court will recognize that ALL matters of culture, except insofar as they involve a clear statute or the action of a state or an arm of government, are to be left to the people and their representatives, OR are to be left to the people, simply. When I say "people," I am talking not only about individuals, but about the organizations that people form, for peaceable purposes.
The reason why a legislature and not a court is the proper arena for adjudicating (for example) what our marriage laws should be, is that the legislature can and should draw upon the broad human experiences of its members and their constituents, and not just the experiences or the predilections of a few lawyers.
Justice Scalia was correct when he said, I think in the Texas sodomy case, that he did not care for the law that was to be struck down, but he did care very much for who would be governing -- saying that in these matters the people will have ceased to be permitted to govern themselves.
We can hardly pretend that the people are sufficient to govern themselves in matters of international trade, or monetary supply, or interstate commerce, or inland waterways and their improvement, or the extraction of goods from the earth -- things that require some special study or experience -- if they are NOT to be held sufficient to govern themselves in matters of sex, marriage, and the raising of children....