What both sides get wrong about gay marriage

Kennedy’s Hallmark Card portrait of marriage is at best a partial truth that has little to do with the daily struggles and difficulties that marriage entails, to say nothing of the fact that a startlingly high number of marriages end in disillusionment and divorce. It does not acknowledge the required sacrifice of individuality, the tolerance of the often-annoying idiosyncrasies of one’s life partner, and the brutal fact that many, many marriages fail when annoyance blooms into something more and when sacrifice and tolerance are no longer bearable.

If Kennedy had recognized these aspects of marriage he might have been driven to a different doctrinal basis for same sex marriage than his reliance on the contested meaning of liberty in the  Fourteenth Amendment’s Due Process Clause, namely equal protection. Instead of his opinion’s cramped, almost incoherent, discussion of equality, he could more fruitfully have said that whatever marriage is, with all of its virtues and imperfections, treating gays and lesbians equally requires offering them the chance to make a go of it.