Justice Kennedy begins with the due process analysis, looking at the "right to marry" cases...

... beginning with Loving v. Virginia. These cases all "presumed a relationship involving opposite-sex partners," but courts necessarily make "assumptions defined by the world and time of which it is a part." Despite that assumption, the precedents had underlying reasons that "apply with equal force to same-sex couples." There are, we're told, 4 reasons:

1. The "concept of individual autonomy." This idea is found in the cases "concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make." (Abortion belongs on that list. Is it tactful — tactical? — to leave it off?) "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation."

2. "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you.

3. Marriage is about bringing up children in a setting of "permanency and stability." Same-sex couples have children — biological and adopted children — and it makes no sense to exclude these parents and force the children to "suffer the stigma of knowing their families are somehow lesser."

4. Marriage is the "keystone of our social order." It's also — mixing architectural metaphors — the "foundation" and "a building block." Government confers many benefits based on the status of marriage, and there's nothing different about same-sex couples that provides a reason to exclude them from this statues and the "constellation of benefits that the States have linked to marriage." And it's not just "material burdens." It's the disparagement: "As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society."

Justice Kennedy rejects the completely historical definition of what is fundamental within the meaning of the due process clause. He looks at "ancient sources," but also seeks "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." That's awkwardly put and will make critics wonder if he was avoiding saying something that would look wrong if said clearly. Justice Scalia, in dissent, offers a stinging paraphrase: "Ask the nearest hippie." [ADDED: I realize, on reading the Scalia dissent, that I misunderstood what Scalia was advising us to ask the nearest hippie about. He meant that the "nearest hippie" would tell you that marriage is a loss of freedom, man.]

Kennedy considers the argument for restraint, for letting this issue percolate/ferment out there in the political arena for a while longer. But we've already taken some time, and rights supervene majoritarian decisionmaking.

What about the argument that same-sex marriage will cause fewer opposite-sex couples to marry? The Court calls it "counterintuitive." It doesn't believe that's the way people think about the decision whether to marry.

Kennedy considers the new problem that now arises: What about those who opposed ssm for religious reasons? They are protected by the First Amendment "as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." That's a reference to speech. It isn't enough to satisfy those who want their religion-based conduct protected (the wedding cake questions and so forth). Indeed, the very same protection is available to those who opposed ssm for reasons other than religion. You have free speech. Nothing is said about the freedom to discriminate based on your disapproval.

I see that I missed the Equal Protection discussion the first time through. Let's scroll back to page 19. The Court says that Due Process and Equal Protection are "connected in a profound way" but rest on "independent principles." Once you see the burden on liberty, you must acknowledge the violation of equality "precepts," Justice Kennedy writes:

Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.

That "long history of disapproval" resonates with old cases about heightening scrutiny, but there's no talk of that here. There's a distinct absence of doctrinal particularity about the levels of scrutiny. There's no discussion of the government interest to be served and how closely connected it is to the policy that's supposed to serve that interest. The focus is on the gravity of the burden imposed.

This ends the live-blogging of reading the majority opinion. It's notable that the due process analysis predominated and drove the equal protection analysis. I think the inequality is easier to explain and understand, but there are reasons to prefer to frame things in terms of fundamental liberty. Equality is, perhaps, a cooler matter than liberty. There's more passion in liberty and more to disagree about. There's no end to demands for liberty, and which liberties get to be fundamental? That question sets us up for the dissenting opinions, and for those, I'll do separate posts.

Much of Justice Kennedy's opinion is workmanlike and dull, piecing together precedents in an earnest effort to show us that the right found today was really always already there and nothing to do with feelings and political preferences. But there were some glimmers of passion. My favorite example:

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."