How the Supreme Court could surprise everybody on gay marriage
Many constitutional scholars predict the high court will find gay-marriage bans unconstitutional and effectively legalize gay marriage throughout the US. Gay marriage opponents, on the other hand, hope the justices will keep those bans in place.
There is a third option that would leave both sides unhappy, though.
"The court could hold that it is unconstitutional to deny LGBT couples all the rights and privileges of marriage without requiring states to allow them to marry," UCLA law professor Adam Winkler told me.
A ruling like that would likely compel states to pass laws allowing "civil unions" for gays - as Vermont did in 2000, when it granted gay couples the benefits of marriage without calling their union marriage. That would disappoint many gay-marriage advocates, many of whom regard civil unions as separate and unequal to marriage. And it could upset some gay-marriage opponents because it would give the privileges of marriage to gay couples.
The case before the court centers on the constitutionality of same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee, and it will consider these two questions:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?
Kennedy, who favors states' rights, might opt for either of these surprise rulings because he would hesitate to force states to grant same-sex marriages.
While Kennedy has consistently ruled for gay rights, he has expressed hesitation about fully granting gay marriage. During the gay marriage arguments in April, Kennedy commented that the definition of marriage has "been with us for millennia" and questioned whether the high court should upend that.
Still, Winkler previously told Business Insider that Kennedy doesn't always favor states' rights over individual rights.
When he struck down the state of Texas's sodomy ban, for example, he championed the rights of Texans over Texas.
"I think Justice Kennedy will say there is a fundamental constitutional right to marry," Winkler said, "and states do not have the authority to infringe on fundamental rights."