Nearly every experienced observer expects the Supreme Court to make gay marriage a constitutional right this June. Justice Kennedy will be the key figure in this decision, as he has been in all the precedents leading up to this point. And Kennedy has made it clear that the only possible reason for opposing legal gay marriage is irrational animus against gay people. Neither he nor the other justices have adequately considered that there might be a rational basis for defining marriage in connection with procreation.
In a very helpful article at First Things today, Hadley Arkes observes that Kennedy has not considered other arguments because the Court’s conservative justices have not made them. Instead, the conservative justices have been making a narrow case based on federalism that the matter should be left to the states. But that has proven to be a dead-end and will not stop the seemingly inevitable decision to come this summer. Because of this, Arkes says that the conservative justices need to try a new tack. They need to make Kennedy explain whether there will be any limit to the principle that the Court is about to establish. If the Court rules that the law cannot privilege procreative unions over non-procreative ones, where does that end? Continue Reading →