I find James Taranto utterly persuasive:
Scalia Was Right
...we are prepared to offer up a prediction: When the Supreme Court takes up Perry v. Schwarzenegger--perhaps under the name Brown v. Perry or Whitman v. Perry--the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.
This accepts the conventional assumption that the court's "liberal" and "conservative" wings will split predictably, 4-4. Yet while Kennedy cannot be pigeonholed in terms of "ideology," on this specific topic, he has been consistent in taking a very broad view of the rights of homosexuals. He not only voted with the majority but wrote the majority opinions in two crucial cases: Romer v. Evans (1996) and Lawrence v. Texas (2003).
This is the Scalia angle:
In his Perry ruling, Judge Walker cited both Romer and Lawrence, arguing that their logic leads inexorably to a finding that same-sex marriage is a constitutional right. One jurist who agrees is Justice Antonin Scalia, who sharply dissented in Lawrence (citations omitted):
Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.
Those who see Justice Kennedy's position in Perry as difficult to predict in effect entertain "the belief that principle and logic have nothing to do" with his decisions on the court. Is this belief justified?
If anyone wants to try to persuade me that we are not on track for a judicial cramdown of gay marriage, go ahead.