So it all comes down to that wild and crazy Justice Kennedy, and by gosh, you just never know what he’s going to do!
We disagree, and we are prepared to offer up a prediction: When the Supreme Court takes up Perry v. Schwarzenegger–perhaps under the name Brown v. Perry or Whitman v. Perry–the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.
This accepts the conventional assumption that the court’s “liberal” and “conservative” wings will split predictably, 4-4. Yet while Kennedy cannot be pigeonholed in terms of “ideology,” on this specific topic, he has been consistent in taking a very broad view of the rights of homosexuals. He not only voted with the majority but wrote the majority opinions in two crucial cases: Romer v. Evans (1996) and Lawrence v. Texas (2003).
There is nothing in the logic of either Romer or Lawrence that bodes well for the widely predicted reversal of Perry. Now, the former decision dealt with a state constitutional amendment invalidating and forbidding the enactment of local gay-rights ordinances; the latter decision overturned anti-sodomy laws that banned gay sex between consenting adults. A constitutional right to same-sex marriage is a more radical proposition, and perhaps Kennedy will either refrain from going that far or find some way to uphold Walker’s ruling without trying to settle the issue for the whole country. But I’m not sure that’s the way to bet, and such a decision will change the politics of this issue in ways difficult for people on both sides of the debate to predict.