Take his celebrated opinion in Obergefell in 2015. What should have been an easy case about the propriety of certain marriage-licensing schemes under an equal protection clause that says the government can’t treat people differently for no good reason, instead became yet another opportunity to wax poetic about the meaning of life. The rule of Obergefell seems to be that you take a scoop of due process and a cup of equal protection, wrap them in some dignity, and then enjoy the waves of adulation.
That’s not law. For one thing, there’s no fundamental right to the state recognition of marriage, which is a kind of government benefit. To put it in the context of injustices perpetrated against gay people, marriage isn’t like the right to have sex with a consenting partner (which Kennedy upheld in 2003’s Lawrence v. Texas ). After all, a logical extension of Kennedy’s understanding of the fundamental right to marriage is that states are prohibited from getting out of the marriage business altogether. That can’t be right.