The US Supreme Court is very divided. Four are center-left or liberal. Four are very conservative. The swing is Justice Anthony Kennedy, who flips back and forth between the blocs.
In two previous cases relevant to GLBT rights, Kennedy was on the side of justice. In Romer v. Evans, he wrote the decision to overturn a discriminatory Colorado law that singled out gay people and said they were not entitled to protections.
Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.And, in the landmark Lawrence v. Texas, he swept away anti-sodomy laws.
The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government..... times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.So it is no surprise that many pundits think Judge Kennedy wrote for one audience member. Dahlia Lithwick:
Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity. The real triumph of Perry v. Schwarzenegger may be that it talks in the very loftiest terms about matters rooted in logic, science, money, social psychology, and fact.Nate Silver:
It seems to me that most of the "intangibles" bear upon Justice Kennedy in ways that favor his finding Constitutional protection for same-sex marriage. For one thing, he'll be 75 or 76 by the time the SCOTUS hears this case, and will probably be thinking about his legacy. Given that, in 50 years' time, American society will almost certainly regard the plaintiff's position (the Constitution does not permit discrimination in marriage on the basis of sexual orientation) as the right one, that legacy would be better served by casting the decisive vote in favor of the plaintiffs.But Kennedy is unpredictable. He might try to split the baby and try to enshrine a "separate but equal" civil union status. Or he might undercut all his previous words, and find against us.
It ain't over by a longshot.