No. It pains me to say, but Koppelman is wrong to hope he would. We’re in this one for the long haul.
First, he’s right to point to Kennedy’s opinions for guidance. The man does love citing himself. His opinion for the Court in Gonzales v. Carhart, 550 U.S. 124 (2007) is essentially his dissent in Stenberg v. Carhart, 530 U.S. 914 (2000), which it openly cites, as if a dissent is good law. That’s… ballsy.
But Koppelman is pointing exclusively to dicta that Kennedy would have no trouble disclaiming where inconvenient, and ignoring the signals Kennedy has left for us about just how far he’ll take his own words. Here’s the critical quote in Lawrence v. Texas, 539 U.S. 558 (2003):
The statutes [banning sodomy] do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Emphasis mine. The bolded text is the critical line in Lawrence: as a “general rule” the state shouldn’t craft rules that limit personal relationships. But the colored text embodies the caveat of all caveats — the state re-acquires its power over personal relationships where the loss of its regulatory power would threaten “an institution the law protects.” What’s that mean?
This isn’t code. It’s a crystal-clear reference to marriage. No lawyer could seriously think otherwise. Kennedy’s admittedly effusive dicta in Lawrence is self-limiting. He saw Koppelman’s argument seven years ago, and expressly disclaimed it. Throwing Kennedy’s words back at him won’t work, because he’ll just point you later in the opinion.
Second, Kennedy isn’t bound by the law as it is. He’s interested in the law, the way it should be. Not in the equity-of-the-statute, good-faith extension of existing precedent way. In the bad, entirely subjective way. His handling of Gonzales should demonstrate as much. Sadly, for us, regardless of whether the limits he built into Lawrence have legal value, with them, he’s told us his personal feelings, and those are the law of this case.
Kennedy’s vote is a loss, unless he’s changed his mind, which we can’t know. More importantly, we can’t be sure of the other “liberal” Justices’ votes either. O’Connor’s aggressive concurrence in Lawrence, which leads more easily to marriage, garnered no additional votes beyond her own. It’s unclear whether subsequent decisions change that analysis. Ginsburg might be on her side now. And I have a hunch Justice Sotomayor and soon-to-be-Justice Kagan would vote for marriage equality, if only because they both have extensive academic connections, and the legal academy is near-100% on our side (really).
That’s three maybes. We need five yes votes. We don’t have them.