Justice Kennedy will no doubt write an opinion prohibiting states from prohibiting gay marriage and he will do so by resort to conceptions and feelings nowhere to be found in the Constitution. Homosexuality, unlike the Internet for example, was part of the Constitution when it was written in 1787 and when I was amended after the Civil War by the 14th amendment. The constitutional fixing of the power to regulate marriage on those occasions will be the last thing Justice Kennedy resorts to in rationalizing his opinion which will be very emotionally satisfying to him but which will represent one more departure from constitutional exegesis toward constitutional editing and rewriting.
Like so much else that goes on in America, this process is decried by conservatives when we see it from the top down but we have lost this case long before it got anywhere near the Supreme Court. It is the organs of opinion in America which have substantially changed the popular view of homosexuality and homosexual marriage which will carry the day rather than the most compelling brief that might be written in opposition to gay marriage.
For the record, my personal view is that it is unconstitutional to prohibit the states from prohibiting gay marriage. I also believe that it is unconstitutional to prohibit states from permitting gay marriage. In any event, the matter is not to be determined by a court, either on the state or the federal level, but by state legislatures in the normal course. When we decide these things in the courts, when the courts decide these things by resort to popular will (or better put, pop culture), we have politicized the court process and we have certainly degraded it. We have not got the results pleasing to conservatism, that was lost on the street level, we have simply moved pop culture into the court where some very great minds translate street patois into high sounding legalese.
