65 Stan. L. Rev. Online 86 (2013).
6 Pages Posted: 14 Dec 2012 Last revised: 16 Jan 2013
Date Written: December 13, 2012
What are the implications of the Court’s decision to accept certiorari in Hollingsworth v. Perry? Advocates of marriage equality may worry that the Court accepted certiorari to overturn the decision. But they should also worry that the Court accepted certiorari to affirm the decision on the same, narrow legal and factual grounds relied upon by the Ninth Circuit. Because while the Ninth Circuit’s reasoning was good for marriage equality in California, it could be devastating to marriage equality efforts in other jurisdictions.
Why? The Ninth Circuit interpreted a key doctrine — the doctrine of unconstitutional animus — in a way that strips the concept of much of its justice-forcing power. It did so by (1) attaching the concept of unconstitutional animus to a narrow and unique set of facts, and (2) relying excessively on the Court’s most compromised animus decision, Romer v. Evans. To get marriage equality right, the Supreme Court will have to look past the unusual factual circumstances of Proposition 8, and the Court will have to put Romer in its proper place with respect to the Court’s broader animus jurisprudence. Ultimately, because Romer is irretrievably compromised by the historical moment at which it was decided, the Court must forget Romer.
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