The Ninth Circuit's Perry Decision and the Constitutional Politics of Marriage Equality

7 Pages Posted: 16 Mar 2012

Date Written: 2012


In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”

Proposition 8 intended that gay and lesbian couples be carved out of civil marriage and relegated to a separate institution, domestic partnerships. The court properly viewed this official status segregation with suspicion — a suspicion that was confirmed by the proponents’ open denigration of lesbian and gay marriages and their inability to tie taking away marriage rights to a genuine public interest. The original meaning of the Equal Protection Clause was that the Constitution does not tolerate class legislation — namely, laws that separate one class of citizens from the rest and bestow upon its members a less esteemed legal regime and, with it, an inferior status. This is exactly what Proposition 8 did. Hence, Judge Reinhardt was strictly enforcing the original meaning of the Equal Protection Clause, as applied to the facts before him.

Keywords: same-sex marriage, California’s Proposition 8, California Supreme Court, civil rights & discrimination, constitutional law, family law

JEL Classification: K00, K30, K39

Suggested Citation

Eskridge, William Nichol, The Ninth Circuit's Perry Decision and the Constitutional Politics of Marriage Equality (2012). Stanford Law Review Online, Vol. 64, pp. 93-98, 2012, Georgetown Public Law Research Paper No. 12-032, Available at SSRN:

William Nichol Eskridge (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-9056 (Phone)

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