For the past year or so I’ve been working on article about Justice Kennedy’s jurisprudence that focuses on how he merges together due process (conduct), equal protection (status), and federalism (states conferring dignity) into a single standard of structural constitutional review. I think this theory helps explain his jurisprudence from Casey to Romer to Lawrence to Windsor. I held off finishing the paper, because I wanted to see what would happen in Bond, which will have huge doses of structure and federalism in it.
But recent events in Utah, and the rapidity with which this issue comes before the Court, will probably give me an opportunity to work in these cases.
Let me make a prediction that will probably be wrong. In Lawrence, AMK cited the fact that so many states decriminalized sodomy as a rationale to strike down the Texas law. There, states striking down these laws was conferring a form of dignity that informs the federal constitutional question. In Windsor, AMK cited the (not so many at the time) states that had given gays the right to marry. There, states granting this right were conferring a form of dignity that informs the federal constitutional question.
Since Windsor, there has been a race of states granting rights to SSM, mostly through the elected branches, but most recently in Utah, and hinted at in Ohio. This is just the kind of thing for AMK to cite to show that states, through his odd form of reverse federalism, are conferring the right of gay marriage should inform the federal constitutional right to gay marriage.
Of course this argument can be coupled with some stuff about due process and/or equal protection, really the same thing to AMK (status and conduct are two sides of the same coin). In any event, there is no need to say whether gay marriage is a fundamental right, or if strict scrutiny applies. He didn’t need to do so in Lawrence or Windsor. No need here. It will be federalism that does the heavy lifting.
Just a terrible prediction. But if it’s right, this will make my article pop.