Georgetown Law Professor Robin West has published A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown. Here’s the abstract:
The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples — the right to the appellation of one’s partnership as a “marriage” — for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the people of California had tried to codify. Thus, the court struck down the state constitutional amendment.
The court did so, however, by relying heavily on facts peculiar to California’s political history, thereby limiting the case’s disruption of democratic processes in both California and elsewhere, and, not incidentally, minimizing the size of the target the case presents should the presumptively hostile Supreme Court review the decision. First, Proposition 8 removed an entitlement that had been granted by the California Supreme Court just a few years earlier. The case thus arose in a posture not shared by other cases involving same-sex marriage: what was at stake was the constitutionality of a referendum that took away — rather than failed to grant — same-sex marriage. Second, California, by statute, guarantees to same-sex couples a “domestic partnership” which statutorily grants all of the legal incidents of marriage, including rights of parentage and adoption. Because of the first fact — that what the Court was faced with was the withdrawal of a preexisting right — the Court did not have to reach the question of whether same-sex couples possess a “right to marry” where it has never before been recognized. Because of the second fact — that all that was at stake in California was the appellation “marriage” since the domestic partnership laws guaranteed to same-sex couples all other incidents of marital status — there was no need for the Court to decide whether there would be a “rational basis” for a state to refuse to grant the right to marry to same-sex couples on the basis of the purported superiority of child-raising in families headed by opposite-sex partners: the case simply does not raise these questions, since California’s statutory scheme grants equal family status to both sorts of couples, and Proposition 8 did not upset that. The court did not, therefore, have to decide that there exists a “fundamental right to marry,” or that any restriction on the rights of gay people to marry would violate fundamental constitutional values. Rather, it narrowly held that Proposition 8, which stripped gay citizens only of the appellation “married” and left all other incidents of marriage intact, worked a dignitary and psychic harm on gay and lesbian partners, and did so for no defensible reason. This decision is thus of no relevance to cases challenging a state’s refusal to extend marriage to include gays and lesbians, and it is of no relevance to cases challenging a state’s withdrawal of such a right if that right is also accompanied by a denial of concrete benefits and accompanied by some explanation — such as the superiority of hetero-sexual parenting — for the decision to do so. Perry v. Brown is nothing more than a sui generis decision for a unique set of facts. Thus, creative minimalism.
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