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First off, I think this is a bad, bad path for the courts to go down. I don’t get too exercised about gay marriage myself, but if the Court imposes it, I think it could be seen as another Roe. Far from settling the matter, it could drive a wedge that will last decades.

That said, to respond to you: the judicial approach does completely disregard the will of the majority of people. (After all, the other 48% or so who voted against Prop 8 are “the people” too).

But I’m not sure I agree that it “turns the law on its head” or disregards established legal procedures.

We live in a country where, for example, a Wyoming citizen has 45 times the representation in the Senate as a Texas citizen.

Similarly, A citizen of Vermont more than three times the representation in the Electoral College as a citizen of California.

Given that 60 senators can block any bill, in theory 10% of the population could block any piece of legislation the other 90% were in favor of. For a Constitutional amendment, the percentages could be even more lopsided, since you need 67 Senators or 2/3 of the state legislatures. That means the least populous 17 states (or 7.4% of the population) can block a constitutional amendment the other 92.6% are in favor of.

The winner-takes-all system results in two milquetoast parties that everyone is perennially dissatisfied with. “Radical” views are neutered and subsumed into an interest-group bargaining system that spits out nothing but inaccessible pablum.

And, yes, on top of that, five unelected Justices have the power to upend our entire culture. This is ironic, because the Supreme Court has no army or direct enforcement power. Just as money is only valuable because people believe it is valuable, the Supreme Court is only powerful because of the reverence “we the people” bestow upon it.

Surveys show, year after year, that the Supreme Court is one of the most highly approved institutions in the nation. This despite the fact that it has been striking down democratically elected laws for nigh on 200 years now.

The Court, from the days of McCulloch v. Maryland, has been imposing the values of a law-trained elite on this country.

In the Lochner Era, it read economic due process rights (i.e. Laissez-Faire) into the Fourteenth Amendment, overriding State and Federal attempts to improve conditions for workers, end child labor, regulate food safety, etc. Many balked, but the elites were adamant.

In the New Deal, it dismantled all of that, giving the Federal government a blank check to regulate the economic realm at a whim, a power that it has never really retreated from. Many balk, but the elites are adamant.

In Brown, it imposed integration on vast swaths of the country that weren’t ready for it. In later cases, it enforced integration through busing, exacerbating “white flight” and urban decay. Many opposed it, but the elites were adamant.

Having abandoned economic substantive due process, the Court’s trigger finger got itchy, and it soon discovered in Griswold and Roe a right to privacy in matters of marriage, sexuality, and reproduction. This was subsumed into a generalized liberty right in Casey, which was extended to homosexual sex in Lawrence. Through all of this, the elites were adamant.

Of course, Lawrence doesn’t just stand for the proposition that there is a constitutional right to gay sex. It actually stands for the proposition that we all have a constitutional right to have sex with whoever we want to, absent a legitimate government interest in stopping us. AND, the court said, history, morality, and tradition, are NOT legitimate government interests without something more (by implication, something “real.”) They trot out the old Holmes quote: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” The elite marches on.

And so, here we are. As Justice Scalia said in his Lawrence dissent, “’preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” His point was that if, per Lawrence, moral judgments are not a legitimate state interest, than little justification remains keeping marriage only between men and women.

This is all to say that our system is not built to “regard the will of the people.”