What Is Anthony Kennedy Thinking?

Slate has a great article by Sonja West titled  What Is Anthony Kennedy Thinking? Why the Supreme Court justice might decide we’ve been thinking about gay marriage all wrong.  It postulates that Justice Kennedy may seek to uphold a right to same-sex marriage on the rational that it would amount to gender discrimination to do anything else.  From the article:

But we shouldn’t dismiss Kennedy’s question about gender discrimination too hastily. The court’s precedents on gender might offer Kennedy the conservative compromise he is looking for: a way to recognize a constitutional right for same-sex marriage in a limited way. 

The gender-discrimination argument is not complicated. Imagine Alice applies for a license to marry Charlie and it is granted. Yet if Bob applied for a license to marry Charlie, he would be denied. The crucial difference between Alice and Bob is, of course, their gender—not their sexual orientation. In fact, as we all know, homosexuals have long been free to marry members of the opposite sex. Thus, Kennedy is wrestling with the possibility that Bob is being discriminated against because he is a man and not because he is gay. And, if so, should the court apply the same level of heightened protection it traditionally applies whenever the government treats men and women differently?

The opinion in this case will likely drop before the end of the month.  While I would prefer something sweeping in favor of this most basic human right, to be sure I'd take this for now.

13 June 2013