Justice Kennedy has changed a lot over the past two decades (Jeffrey Toobin's "The Nine" does a great job of documenting Kennedy's jurisprudential psychology, if that sort of thing interests you), but the best insight into his thoughts on subject matter like this might be his concurring opinion in Texas v. Johnson, 491 U.S. 397 (1989), the noted flag burning case. In words far more poignant than anything I could cobble together here, Kennedy famously conceded great uneasiness with both the Court's judgment and the respondent himself but ultimately was compelled to side with the First Amendment over his personal grumblings. It's not hard to imagine something like this bubbling to the surface of a majority opinion, if Kennedy can find four colleagues who share his view.

It's worth noting that Kennedy is one of three members of the Johnson Court who remain on the bench; the other two are Justice Scalia, who concurred, and Justice Stevens, who dissented. Stevens has conceded in recent years that he probably should have concurred with the Johnson majority, but in truth, he very well might not be on the bench when the Court hands down Snyder v. Phelps next year.