I didn't have time on Friday to put links into my SCOTUSblog piece given the "ASAP" deadline, but here is the American Psychological Association's brief on which Kennedy's opinion relies. Surveying the rest of the briefing turns up quite a lot of other material on the immutability issue–see here, here, here, and here for some of the briefs surveying scientific literature, here for anecdotal accounts to consider alongside the Court's use of the plaintiffs' personal histories, and here at 15-16 for a brief making the same point about the APA-cited Herek survey that I made in my essay–i.e., that it actually contradicts a claim of general immutability.
The Court's cavalier approach to the relevant facts in Obergefell would have trouble, I think, passing muster under administrative-law standards like Overton Park (requiring "adequate explanation"), State Farm (agency must "examine the relevant data and articulate a satisfactory explanation for its action"), Fox ("a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy"), or this morning's Michigan v. EPA ("reasoned decisionmaking"). In another case this morning (the execution-protocol case, Glossip) the Court reiterated that "federal courts should not embroil themselves in ongoing scientific controversies beyond their expertise." That general principle would have served the Court well last week. For much more on the relevance of standards of knowledge to judicial review, of course, see here.
Posted at 9:01 AM