The argument that gays and lesbians are politically disenfranchised has always seemed to me the most difficult one for the pro-marriage-equality legal team to make stick. (It’s one of the criteria that would qualify Prop. 8 for strict scrutiny, the standard that would place the highest burden of proof on the proposition’s defenders.) Demonstrating a history of prejudice against gays and lesbians isn’t hard at all. But we do live in a country where there are openly gay elected officials, where the President of the United States was the keynote speaker at the annual dinner for the largest gay-rights organization, and where, as of now, five states and the District of Columbia have managed to legalize gay marriage, while another ten have legalized civil unions or domestic partnerships. Of course, you can still make the point that if marriage-equality advocates have to go to a popular vote, they will usually lose, just as civil-rights advocates would have if they had put Brown v. Board of Education or Loving v. Virginia to a vote instead of turning to the courts. The majority can’t be relied upon to ratify the rights of a minority—that’s what the Constitution is for.

Read the rest of Margaret Talbot’s The New Yorker article here.