To keep the momentum going, here’s one tiny piece that I intend to post as a follow-up to the previous blog post. Disclaimer again: I’m just here blogging about my opinion based on my limited legal knowledge which I don’t even purport to comprehend fully.

Acute readers might have noticed that the majority opinion penned by Justice Kennedy in Obergefell seems to recognize but dodge some legal questions about Equal Protection. Indeed, critics have said that Justice Kenney’s opinion is light on legal analysis and heavier on social policies. For some, this is troublesome since the Supreme Court is, unlike every other court in the United States, kind of a “policy-making” institution, given that it has often been wrapped in the garb of many high-profile cases that set the constitutional rules for the entire country. In this case, the Court established a fundamental right to marriage based on two critical rationales. First, it held that marriage is a fundamental right and expatiated the characteristics that make it so. Particularly, the Court identified four such attributes of marriage: it is critical to individual autonomy, it is essential to support a two-person union unlike any others, it affords the permanency and stability essential to children’s interests, and it is a keystone to our social order. The Court then went on to show that these properties are a fortiori; therefore, are invariant across same-sex and opposite-sex marriages. This opinion is best epitomized in the ipsissima verba of the Court:

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.

Second, it tacks on an Equal Protection analysis to reason that by not extending the institution of marriage to same-sex couples, the law de facto demeans them.

It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too many aspire to the transcendent purposes of marriage.

Such fundamental right argument is perhaps the part of the opinion that have elicited public strictures. People criticize the first rationale since decreeing something as a fundamental right is on occasion unfavorable under the Due Process jurisprudence. Indeed, in Washington v. Glucksberg, the Court said that fundamental rights should be defined in a very careful and narrow manner:

As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe … ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” 507 U. S., at 302.

Under such standard, some argued that Justice Kennedy’s opinion wasn’t that carefully and narrowly crafted. For the second part, some even find it more dissatisfying because to conduct an Equal Protection analysis one would typically set up a level of scrutiny: laws that are subject only to rational basis scrutiny are usually upheld while those to intermediate or strict scrutiny are often struck down. In Obergefell, the Court didn’t articulate the appropriate level of scrutiny for discrimination against same-sex couples, which conceivably opens doors to in futuro litigations on many disputes that the public expect the Court to resolve in this case.

[ I do not think the Court’s opinion dictates the result of many such cases, for example, whether the fundamental right to marry extends to polygamy, which the Justice Kennedy went to great length to reason why it doesn’t.]