You continue to make this claim in spite of the fact that the very opinion you cite doesn't use the words "rational basis" or "intermediate scrutiny" anywhere in the text. Apparently you are claiming that Kennedy writes opinions and leaves the very standard of review to some unstated "common knowledge."<quoted text>
I have no interest in arguing this point because it is common knowledge that quasi-suspect classification was used in Lawrence versus Texas. You will not find the word anywhere in the opinion for that case because it's a doctrine through which the question of substantive due process is viewed. However, if you read the opinion, it is asserted many times over that justifications for Texas' sodomy laws failed the test of rational basis and neither did lawyers offer a valid compelling state interest.
Such a claim is head-shakingly amazing.
You've correctly read the DISSENT, but not the majority. The majority NEVER USED RATIONAL BASIS in its opinion. The majority used the DUE PROCESS clause, not the EQUAL PROTECTION clause. Scalia claims they incorrectly applied a heightened scrutiny standard from EQUAL PROTECTION jurisprudence in a sexual orientation case that was decided on substantive due process. That's Scalia's claim. Kennedy didn't write a rebuttal.You will, however, find a succinct analysis (and criticism) of the court's use of substantive due process in Scalia's dissent. He correctly points out that the court claimed to use the rational basis standard, but then applied heightened scrutiny instead; hence, "intermediate scrutiny".
Scalia, J., dissenting:
Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest.(notations omitted) We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection...
And it is this VERY POINT that apparently goes right over your head. It's why I argue that the advocates for same-sex couples should not emphasize discrimination based on sexual orientation, where the standard is rational basis if EQUAL PROTECTION is used. They should emphasize discrimination based on sex, where the standard is heightened scrutiny if EQUAL PROTECTION is used.
A substantive due process argument in a civil marriage case invites Roberts to rule against same-sex couples, and sexual orientation discrimination arguments invite Kennedy to rule against same-sex couples.
That's the point. Argue sex discrimination which requires intermediate scrutiny under the equal protection clause. Give Roberts the opportunity to drop-kick substantive due process, which is what he wants. Give Kennedy the heightened scrutiny standard he needs to satisfy his conservative inclinations.