But the court reached what can arguably be seen as a conservative result Wednesday, even though Kennedy’s opinion was joined by the four liberals on the court. While striking down DOMA as a violation of constitutional guarantees of equal protection, the majority said it had no interest in extending the right of same-sex couples to marry to every state of the union. The opinion seems to go out of its way to demarcate the ruling from the momentum propelling the same-sex marriage movement.
Undoubtedly, that was the way to draw Kennedy on board in the first place. It was always his vote here that mattered most—although some thought Chief Justice John Roberts might be persuaded, as well. In oral arguments, Kennedy had the look of a justice groping for the most painless way to bail the court out of its predicament.
He found it. “The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens,” he wrote. “Consistent with this allocation of authority, the Federal Government, through our history has deferred to state law policy decisions with respect to domestic relations,” he added.
Then this: “Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways.”
Change a few words around, and he could be an activist on the right lamenting President Obama’s health care law.