The majority opinion in West Virginia Board of Education v. Barnette has long been a favorite of mine, as a civil libertarian, because it recognizes so much of the basic truth of the anti-majoritarian model the Cons ution establishes. Among the best parts of that opinion is the recognition (echoed today by Justice Kennedy's majority) that:
The idea of the Cons ution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943). This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Ibid.
When a right is fundamental, we don't get to vote about who enjoys that right.
Marriage is a fundamental right.