YES, you CAN modify the kernel (although maybe not under some stupid corner cases in the USA, thanks to DMCA. But pretty much everywhere else in the world) ...BUT...
you CAN'T re-distribute THE MODIFIED kernel to 3RD PARTIES, without obtaining a specific license to do so.
Psystar CAN obtain Mac OS X. Can modify the kernel (let's say in Europe, for the sake of avoiding DMCA). But CAN'T sell it on computers to customers, as they are selling a derivative of Apple's work, without Apple's license.
Actually because OSX in built on the BSD licensed Mach kernel, it is perfectly legal to modify and distribute the kernel. The leading effort in this regard is even hosted on google code http://code.google.com/p/xnu-dev/. This modified kernel allows people to run OSX on AMD processors and other CPUs without the latest SSE extentions.