As the Supreme Court prepares to rule on two momentous cases on gay marriage Wednesday, it happens to be 10 years to the day since the Court struck down the sodomy law in Texas in the landmark case Lawrence v. Texas, which affirmed the right of gay couples to have consensual sex for the first time.
Justice Anthony Kennedy, a generally conservative justice who has been the swing vote on many of the court's decisions, wrote the majority opinion on the case, saying: "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime."
Kennedy based his opinion in part on a review of laws that had criminalized certain sexual practices throughout history.
Wednesday, all eyes are once again on Kennedy, whose vote will likely be the most important in the two rulings on the constitutionality of Proposition 8, the California amendment that banned gay marriage, and of the Defense of Marriage Act, the federal law that restricts federal benefits to legally married gay couples.
But just because Kennedy sided with liberal justices on Lawrence v. Texas doesn't make him a shoe-in for gay marriage advocates.
As Talking Points Memo reports, Kennedy expressed reluctance in oral arguments to grant marriage equality to all states, and could choose a middle path Wednesday that would allow only California and other states with gay marriage to keep it on the basis that states may define marriage for themselves.