As the world now knows, the Supreme Court handed down its decision in Obergefell v. Hodges, holding that all gay marriage bans are unconstitutional. It seems clear, from this vantage point, that Justice Anthony Kennedy—the author of the majority opinion—has been working toward this day since Monday, May 20, 1996, when he announced his pro-gay opinion in Romer v. Evans. I also suspect Kennedy, who has a good sense of history, timed his decision to come down on June 26—the same day Lawrence v. Texas (2003) and United States v. Windsor (2013) came down. Or maybe I’m just sentimental.
The majority opinion—divided along the predictable 5–4 lines—has all the hallmarks of a Kennedy Special. Its rhetoric is as gorgeous as its legal reasoning is gauzy. Its key passage, bound to be recited at this weekend’s New York City Pride Parade, is the encomium to marriage that gay rights advocates pined for, but didn’t quite get, in Windsor:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
And the decision is stuffed with sweetly teary-eyed turns of phrase. “Marriage,” Kennedy writes, “responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” Justice Antonin Scalia decries these passages as “profoundly incoherent … showy profundities” and “the mystical aphorisms of the fortune cookie.”
I can’t completely disagree—but I think Kennedy does a decent job explaining the “synergy” between the Due Process Clause’s guarantee of “liberty” and the Equal Protection Clause. Personally, I would have preferred this to be a straight equal protection opinion—one that finally admitted that laws targeting gays call for heightened scrutiny. But Kennedy’s alternative rationale is fairly satisfying:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.
Many gay rights advocates and scholars will be disappointed that the court does not directly address the heightened scrutiny question. I’m not too worried, though. I suspect that, armed with Obergefell, more circuits will do what the 9th Circuit did with Windsor and declare that heightened scrutiny is implicit in those opinions. They will, in other words, do Kennedy’s job for him—and, in the process, use Obergefell to expand gay rights even farther beyond today’s victory.