SCOTUS issued Lawrence v Texas, 539 U.S. 558. In the 6-3 ruling, the Court specifically struck down the anti-sodomy statute in Texas, reversed itself from Hardwicke v Bowersin 1986 which had upheld Georgia's anti-sodomy law, finding that case viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment.
Five Justices ruled on the basis of due process - Anthony Kennedy, who wrote the opinion of the Court, David Souter, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg. Sandra Day O'Connor vote on the basis of equal protection, because the Texas statute made a distinction between opposite sex and same sex couples doing the same acts.
Today the Court will issue decisions on DOMA and on Prop 8.
Will Kennedy remain true to his previous pattern of recognizing the rights of gays? In his opinion in Lawrence, Kennedy specifically noted that overturning the Texas law "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."
It is worth noting several aspects of two dissents.
Scalia opined that if there was no basis to ban behavior based on moral choices, then - among other things - there was no basis to ban same-sex marriage. He also made clear that he had no objection to gays promoting their agenda through normal democratic means.
Clarence Thomas said that the Texas law was silly, and were he in the Texas legislature he would vote to overturn it. It is worth remembering that Thomas finds no general right of privacy in the Constitution - which of course means that he would be willing to overturn Griswold v Connecticut.
That does not mean that either of those two justice would necessarily vote the way we might want want with respect to either of the cases pending.
But given that states are now voting - through regular democratic processes - to legalize same-sex marriage, given the rather clear evidence of the direction of the country on this issue, one might wonder....
and given that today is the anniversary of Lawrence, and that the Chief Justice to some degree controls when decisions are announced, might one wonder if there is some intimation of recognition of the symbolic nature of the occasion?
Just some food for thought....