A brief comment on Justice Kennedy's opinion in Windsor

No doubt it was irresistible for Anthony Kennedy, the senior justice in the majority, to give himself Windsor, given his earlier opinions in Romer and Lawrence.  One consequence, of course, is that he had to keep the support of his four distinctly more liberal colleagues.  No doubt this contributed to the intellectual awkwardness of his opinion.  "Opinions of the Court" often have the characteristic of a camel (i.e., a horse designed by a committee).

Already there is some of the same kind of nit-picking about the doctrinal problems with Windsor as there most certainly were with Romer.  I.e., Kennedy wants to avoid a straight-forward equality argument that would inevitably mean that state prohibitions of same sex marriage are unconstitutional (or, at the very least, that Section 2 is just as invalid as Section 3 inasmuch there can be no constitutionally legitimate reason for Texas, say, to refuse to recognize the validity of a marriage entered into in New York by people who then move to the Lone Star State).  At the same time he no doubt realized that he couldn’t get a single additional vote if he predicated the opinion on a “reserved powers of the state to define marriage” argument, though he certainly included some blather about traditional state sovereignty and marriage.  So we get the combo that leaves many people who take legal doctrine overly seriously confused (though I presume we all predict that some time in the future  the Court will go after then now-outlier states that are sticking to heterosexual marriage as the exclusive norm).

But what if he had given the opinion to one of the moderate four?  Surely, she (or Breyer) would have emphasized equality and downplayed the federalism argument  (assuming it was even mentioned it at all).  So would we have had a 4-4-1 outcome, with Kennedy playing Powell’s role in Bakke, providing the crucial 5^th vote on a theory rejected by all the rest of his colleagues?  This is, of course, basically what happened in Parents Involved.  So the (altogether serious) question is whether we are better off with the “Opinion of the Court,” however intellectually problematic in some ways, than with an undoubtedly more intellectually satisfying and coherent opinion written by any of the other four members of the majority that would not, however, received the label "Opinion of the Court."