(This is the first of two parts analyzing the U.S. Supreme Court’s decision in Obergefell v. Hodges, the same-sex marriage case.  This week’s piece focuses on the background of decision author Anthony Kennedy on this issue, and it briefly looks at the arguments posed by the four dissenting members of the Court.  This sets up next week’s discussion of substantive due process and the details of the Court’s majority ruling.)

On Friday, a divided U.S. Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires all states to license and recognize marriages, regardless of couples’ sex.  The highly anticipated decision, authored by Justice Anthony Kennedy, comes two months after litigants from Kentucky, Michigan, Ohio and Tennessee argued before the Court.

After the decision was announced, advocates for marriage equality rallied in front of the Court’s building on First Street in D.C., while proponents of the historical definition of marriage voiced concerns for the decision’s impact on religious liberty.  The immediate effect of Kennedy’s order is clear, but the devil is often in the details when it comes to judicial opinions.  Advocates of all perspectives benefit from knowing what Kennedy—and the Court’s dissenters—actually wrote, especially in light of the heavy focus on the centerpiece of the Court’s broad holding requiring same-sex marriage be permitted.

The first place to look is at the author himself.  Kennedy’s bare majority of the nine-member Court had his decision joined by the four-person liberal wing of the Court, but Kennedy himself is not a liberal.  He was appointed by a conservative Republican president and more often votes with the four conservative justices, but most informed commentators and observers of the Court’s work place Kennedy’s judicial ideology in a more nuanced strain of libertarianism.  While Chief Justice John Roberts is known for having an affinity for business and enterprise interests and Justice Antonin Scalia is strict in his adherence to the original meanings of laws, Kennedy often holds the individual rights of citizens above all else.  Consider the contrast between his authorship of the same-sex marriage opinion Friday and his authorship of the liberal-decried Citizens United v. Federal Election Commission decision just a few years ago.  In the latter case, concerning limitations on corporate and union money in political campaigns, Kennedy found the free expression of political speech as vital as the liberty for gay couples to marry under his Obergefell decision released Friday.

There is no question that Kennedy believes in gay rights, since he has authored all four of the major decisions favoring LGBT Americans in the Court’s history.  In 1996, he wrote the Court’s decision in Romer v. Evans, declaring that states cannot stop their branches and cities from prohibiting sexual orientation discrimination.  Seven years later, Kennedy wrote for the Court in Lawrence v. Texas that laws prohibiting same-sex intimacy are unconstitutional.  Before Friday’s marriage decision, he authored the 2013 opinion in United States v. Windsor, striking down the federal Defense of Marriage Act that stopped lawfully married same-sex couples from being viewed as married in the eyes of the federal government.  This record led to wide speculation marriage equality advocates would succeed in Obergefell, probably on Kennedy’s writing, and it bars interpretation of the decision as being apart from a burgeoning LGBT rights legal canon.

But that is not the end of Kennedy’s liberty streak.  He cares deeply about religious freedom and the First Amendment.  He made it clear in the decision that religious establishments and their followers lose no ground in their right to argue “same-sex marriage should not be condoned.”  He went further in writing that those same people still have “protection as they seek to teach the principles that are so fulfilling and so central to their lies and faiths.”  While he finds the Constitution “does not permit the State to bar same-sex couples from marriage,” he minces no words in upholding the right of religious Americans to voice their strong opposition to his conclusions.  His dissenting colleagues, however, don’t think he went far enough; Roberts said Kennedy’s defense of religious advocacy fell short of the First Amendment’s protection of religious exercise, while Justice Clarence Thomas wrote separately that the decision could have “ruinous consequences for religious liberty.”

Beyond these concerns, Roberts posited that he is happy for the gay couples who do and will benefit from the Obergefell decision.  But he believes the Court’s majority robbed those couples of a fair victory at the ballot box, where he says this fight should have been held.  He does not disparage same-sex marriage—in fact, he says the policy arguments in favor of same-sex marriage are “compelling”—instead emphasizing that the Court should not have made this decision for the states.  This reply by Roberts is predicated on his absence of a finding that there is a right to marriage for all couples, but Kennedy’s finding that there is a such a right is what removes the decision from legislative control, as Kennedy rules.

Scalia’s dissent also disavowed the majority’s ruling on grounds of alleged judicial overreach, but, to pair with the states’ rights point by Roberts, Scalia advanced that this matter was not the job for a court at all.  Using his longstanding approach as a “textualist,” viewing the Constitution and individual laws by their plain text at the time of writing (instead of the spirit of the law), he wrote that the citizens whose legislators ratified the Fourteenth Amendment would have never conceptualized same-sex marriage as a consequence of either its Due Process Clause or Equal Protection Clause.

All of this narrows the stage to understand Kennedy’s ruling, but it still does not tell us why Kennedy ruled the way he did.  To understand that, we need all of the above background of his understanding of the issue of same-sex marriage and his replies to the objections of his colleagues.  But to get to the heart of why Kennedy believes the Fourteenth Amendment requires same-sex marriage licensure and recognition is more complex, and a good understanding of it requires knowledge of the Court’s complicated history with the notion of fundamental rights, the Court’s history with substantive due process, and levels of constitutional scrutiny.  Those concepts and how they underpin the Court’s ruling will be reviewed next week.