This is why the overturning of the Cincinnati statute and the ruling of the appeals court, seems to be completely contradictory to what the majority argued in Romer . If the decision is taken to mean that homosexuals have a constitutionally protected minority status, then presumably opponents of such status will be deprived of their ability to change local, state or even federal law. Whether one substantively supports the approach of Aspen or Cincinnati, advocates of local self-government must support the authority of local communities to govern themselves. The federal courts have become a forum for overturning local and state elections that one has lost. The Cincinnati opinion makes us suspect that Justice Kennedy and the others who joined in the majority opinion support local initiatives only when they happen to agree with the outcome.
Liberals insist on judicial oversight because they fear the tyranny of the majority.
The answer is not to be found in relying on an unelected judicial elite, but in empowering local communities. The history of this country is replete with examples of persecuted minorities fleeing to set up their own communities. The country is big enough to survive if homosexuals control Aspen and fundamentalist Christians control Cincinnati. What the country cannot survive is a knock down drag out culture war in which each side attempts to use the federal courts to nullify democratic initiatives and impose its ideology on the rest of America.