A lawsuit challenging California's gay marriage ban, Proposition 8, on 14th Amendment grounds, is headed to the Supreme Court. Justice Sotomayor's ascendancy notwithstanding, Justice Kennedy will be the Court's pivotal vote in this case. His opinion in Lawrence invalidated anti-sodomy statutes under the 14th Amendment, yet he expressly distinguished such laws from gay marriage bans, leaving them an open issue for another day. While this may mean he would uphold Proposition 8, I am not quite convinced. This is because Kennedy takes strict judicial scrutiny seriously, and gay marriage bans arguably satisfy both triggers of strict scrutiny: 1) a law's burden of a fundamental right and 2) a law's use of a suspect classification. As for the former, the Court has long recognized marriage as a fundamental right. While Kennedy might agree that this has always implicitly meant heterosexual marriage, his championing of gay rights in Romer and Lawrence may lead him to take a more complex view. As for the latter, while homosexuality is arguably a suspect classification, conservatives often do not see it as an innate, immutable characteristic, and Kennedy might agree. The upshot is that the constitutionality of gay marriage bans will likely depend simply on which level of scrutiny Kennedy thinks applies to them, and this is an open question: if he concludes that rational basis scrutiny applies, they will likely be upheld; if strict scrutiny applies, they will likely be struck down