Judicial review is a fundamental part of a republican system of government as it allows for the minority to have recourse when its rights are trampled by the majority. And restricting the majority from taking advantage of the minority is one of the benefits of a republic over a democracy, and a republic is what we were given by our founders, which was nowhere more clearly explained than in James Madison’s Federalist Paper #10.
But this is not what the Court is being asked to do in this case. The Court is being asked to overturn a law that does not threaten or strip any group of a right.
In order for judicial review to serve its purpose, and not step into the area of judicial activism, the Court can only overturn popularly enacted laws when those laws violate rights. However, not everything qualifies as a right. Just because a person or a group wants something does not mean it is a right.
I think that this question was best summed up in the supreme court oral arguments a few days ago, when one of the justices asked if the huge momentum and change in regards to gay rights meant that it was simply too soon for the court to rule on such a thing.
Momentum in the political world make make some judges think that judicial protection is less necessary. While it is possible that they will take a cue from society based on the shifting political opinions, it is also possible that this will give weight to arguments that this is being decided in the political sphere.
Supports for gay rights should not even be considered an issue, as they are human beings and thus deserve rights and protections as any other individual. The political movement and push towards gay rights is a stepping stone towards other arguments and rights. Society is changing and the legal world must also accommodate. There is so much red tape and regulations that so few laws are passed when they should rightly be passed.