I've now had time to read the opinions. Some thoughts:
Kennedy's majority opinion reaches the right result, but is thoroughly unhelpful on just exactly what the law now is. In particular, Kennedy focuses almost entirely on a fundamental rights/substantive due process theory, while barely mentioning the equal protection clause -- which I regard as a much stronger argument. But he never quite actually says which theory he's actually relying on, and he provides no guidance on whether, for example, he's applying heightened scrutiny or a rational basis test.
Scott Lemieux makes the point well:
While Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas are wrong about same-sex marriage, they weren’t wrong about Kennedy’s majority opinion, which leaves a lot to be desired. All of Kennedy’s same-sex marriage opinions have all contained passages whose legal reach exceeds their rhetorical grasp, and even people sympathetic to Kennedy’s conclusions will wince in recognition when reading Scalia’s snarky lines about Kennedy’s “straining-to-be-memorable passages” and “inspirational pop-philosophy.”
Much worse than its aesthetic problems, however, is where Kennedy leaves equal protection law as it pertains to LGBT rights more generally. As with Kennedy’s DOMA opinion – about which
I wrote that he “flirt[ed] awkwardly with federalism, due process and equal protection rationales without ever quite summoning up the courage to invite one to the prom” – he maddeningly continued in this opinion to vaguely invoke both equal protection and due process theories without clarifying the applicable standard when it comes to LGBT rights more generally. “Each concept – liberty and equal protection – leads to a stronger understanding of the other,” asserted Kennedy.
The problem with Kennedy’s judicial vagueness is that public officials and lower courts need to know whether classifications based on sexual orientation should be subject to heightened scrutiny, like those based on race or gender, or
whether such classifications require only a “rational basis”, like economic regulation. If heightened scrutiny applies, states can only use sexual orientation classifications in law if it they are closely related to a compelling state interest – a test states usually fail. If states need only a “rational basis,” courts are generally very deferential to the state. After Friday’s opinion, it seems obvious that heightened scrutiny is being applied in practice, but Kennedy inexplicably refuses to say so. The refusal to define sexual orientation as subject to heightened scrutiny will lead to unnecessary confusion, and possibly permit federal and state judges to deny LBGT rights claims that even Kennedy might think should be upheld.
In a nutshell, the main problem with Kennedy's opinion is that Kennedy wrote it.
I had exactly the opposite reaction to Roberts' dissent: It was measured, rigorous, and wrong. Roberts (politely) lands some hard blows on Kennedy's grandiose woolliness, but essentially he argues that every society on earth has more or less always discriminated against gay people in this way, and if that's to be changed then it should be done by legislatures and not the Court. Obviously I disagree: The 14th amendment says that states can't deny anyone "the equal protection of the laws", the states have obviously been doing just that to gay people, and it's emphatically the Court's job to stop it. If individual liberties are only protected when majorities permit it, then we just don't have individual liberties.
Scalia, who joined Roberts' dissent, made no substantive point Roberts hadn't made and apparently wrote separately only because he regarded Roberts' dissent as insufficiently intemperate. Scalia begins by implausibly insisting that he's got nothing against the icky gays -- who he's described with unconcealed loathing in prior opinions -- then insists that the Court's decision to treat gay people equally with straights is a " threat to American democracy." Where Roberts was respectful, Scalia is derisive, dismissing "the mummeries and straining-to-be-memorable passages" of Kennedy's majority opinion. "A system of government that makes the People subordinate to a committee of nine unelected lawyers," he says, "does not deserve to be called a democracy." (Of course, we have a republic, and not a democracy, precisely because we have a Supreme Court that can check majoritarian excesses and protect the rights of disfavored minorities. The Founders detested true democracies.) He's astounded by "the hubris reflected in today’s judicial Putsch." (Because a decision granting equal rights to gay people calls immediately to mind
the Nazis' rise to power.) Much of his opinion reads like a snarky blog post. This is a guy who's quit pretending that anyone ought to take him seriously.
I didn't spend much time on Thomas' dissent, except to confirm that he's still insisting that there's no such thing as substantive due process, which might have been a fair point prior to
United States v. Carolene Products (1938), but which places him well outside the mainstream of modern legal thought. Thomas is a reasonably well-spoken loon.
I spent enough time with Alito's dissent to be reminded that he is the same neanderthal who, as an appellate judge, upheld the spousal notification requirements that were a bridge too far for Sandra Day O'Connor in
Planned Parenthood v. Casey. While Kennedy's majority opinion engages in "silly extravagances" (Scalia), Alito's dissent drags its knuckles:
Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations.
This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same sex marriage serves the States’ objectives in the same way as opposite-sex marriage. This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.
. . . While, for many, the attributes of marriage in 21st century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.
Well, I suppose they do worry about that, or at least claim to, but they can't establish any rational basis for such worries. (Go
here to read 7th Circuit Judge Posner eviscerate the arguments made by Indiana and Wisconsin in support of their gay marriage bans.) One can only admire the long-suffering Mrs. Alito for her stoic performance of her wifely duties in an excruciatingly traditional marriage.