The combined result of these two decisions is profoundly lawless: Plaintiffs in DOMA have standing because, well, the Court wants to decide it. Proposition 8 plaintiffs representing 7 million California voters and determined by the California Supreme Court to have standing to defend the law in court if state officials refuse – denied justice, denied a hearing.

Kennedy’s decision substantively refuses to engage the argument for marriage, as Scalia notes, dubbing it all animus, desire to degrade, humiliate, disrespect. An awful, awful thing for a Supreme Court justice to do to people he disagrees with. Lawless, as well, because he declared a form of heightened scrutiny for laws that deviate from custom — a rule never applied to all the new liberal laws that deviate from custom.

In this respect, Kennedy has issued the Roe v. Wade of our generation.