Support First Things by turning your adblocker off or by making a  donation. Thanks!

I’m working my way through Windsor , and I must say, Anthony Kennedy has never been worse—sophistry, casual matter-of-fact demonization, unclear basis for the decision, vague and repetitive phrasing, and a nauseating pretense of caring oh-so-much about how our federalist tradition assigns the regulation of marriage to the states.

Even if you disagreed with it, his Lawrence decision had two or three passages where key principles and arguments were well-phrased. Moments that felt like an intellectual break-through, or a clear-enough posing of the alternatives. Even the much-mocked (and deservedly so)”mystery passage” of Casey at least had a striking character to it.

I’m seeing none of that in this opinion—the argument sections feel rote, perfunctory, and shrill when not tediously wordy. Kennedy’s only interesting when outside the actual argument, describing the facts of the case, or giving us tidbits like the fact that 13-year-olds can marry in New Hampshire but not Vermont.  Worst of all, his argument seems to be mashing (substantive) due process liberty and equal protection into one amorphous thing, so that the most distinctive A. Kennedy contribution to our jurisprudence, his “true logic of liberty” theory, just bleeds away into this mush.

And I can tell this opinion will be misery to try to use for teaching purposes. That’s not just a professor’s complaint—a major opinion like this is charged with the responsibility of persuading and educating the citizenry. I’ll say more later, I expect . . .

Dear Reader,

We launched the First Things 2023 Year-End Campaign to keep articles like the one you just read free of charge to everyone.

Measured in dollars and cents, this doesn't make sense. But consider who is able to read First Things: pastors and priests, college students and professors, young professionals and families. Last year, we had more than three million unique readers on

Informing and inspiring these people is why First Things doesn't only think in terms of dollars and cents. And it's why we urgently need your year-end support.

Will you give today?

Make My Gift

Comments are visible to subscribers only. Log in or subscribe to join the conversation.



Filter First Thoughts Posts

Related Articles