Early in his opinion, Justice Kennedy laid groundwork that might have been used to flesh out a decision on the appropriate level of scrutiny. He reviewed the history of discrimination against gays and lesbians-- one of the factors that traditionally figures into a determination of whether heightened scrutiny is called for. However when he gets to the discussion of equal protection, Justice Kennedy largely ignores that groundwork, mentiioning the history of discrimination only in passing. Instead he treats the equal protection clause as a provision that primarily serves to emphasize the correctness of the fundamental-right-to-marriage conclusion that he has already reached. That is, unlke most past cases in which substantive due process arguments were made largely to emphasize the severity of the denial of equal protection, here the roles of the two clauses are reversed. Justice Kennedy says in part:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right....
The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause....
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged....
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.Justice Kennedy thus muddies the water even more as to the test for when discrimination against gays and lesbians, outside the context of marriage, violates the equal protection clause. He also implicitly suggests that future governmental action burdening in some fashion the right to same-sex marriage should be tested primarily under the due process clause. Thus if states enact laws permitting business owners with religious objections to refuse to provide goods or services for a same-sex marriage, it would seem that the provision's constitutionality should now be tested not by whether the government has a compelling interest to treat same-sex marriages differently than other marriages, but rather by whether the governmental action places a substantial obstacle or undue burden on the liberty interest of the marriage partners.
