The U.S. Supreme Court, in a 5-4 decision, has struck down all remaining state bans on gay “marriage.” The decision was authored by Justice Anthony Kennedy, a putative Catholic and a Republican appointee.
That such a decision was coming should have surprised no one; the only question was how far-reaching that decision would be. Just four days ago, I was still convinced that the Court would go the Full Faith and Credit Clause route, not directly forcing any states to perform gay “marriages,” but requiring all states to recognize such legal fictions contracted in other states. That’s why I believed that the majority would be at least 6-3, and possibly as high as 8-1.
Instead, the Court has pulled a full-on Roe v. Wade, invalidating not only all remaining state bans on gay “marriage” but in essence all state laws governing marriage (even those that had allowed gay “marriage”). Marriage is now entirely a federal matter; on this as on virtually everything else, the states are only administrative units of the federal government. Gay “marriage” is no longer a statutory question; it’s a constitutional right. The fact that no one who helped draft the Constitution or debated its ratification in the states could ever have conceived of such a “right” is utterly irrelevant. The author of the infamous “mystery passage” in Planned Parenthood v. Casey (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life . . . “) can conceive of such a “right,” so it must exist.
The Constitution is a living document, and its name is Anthony Kennedy.