afs, you raise a good point about rights not being subjected to popular vote. One of the primary motivations of the Founding Fathers in drafting the Bill of Rights was to protect the rights of the minority against the will of the majority. They knew that there would be times where highly unpopular religious beliefs, speech and opinions, vilified criminals, and controversial associations (among other things) would be silenced by legislation or popular vote. Those were the rights, deemed most important to protect.

While the US Supreme Court will not likely take the step in the pending cases to apply the Fourteenth Amendment to the issue of gay marriage, the day will inevitably come when that decision will be made. While the Court has issued recent decisions supporting gay rights, like ruling that Texas' anti-sodomy laws were unconstitutional, it has not yet clearly determined a standard for review applicable to gay rights even though past decisions declared laws unconstitutional without even considering heightened scrutiny.