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Perry v. Brown’s Logical Quagmire


This post is part of the inaugural legal symposium we at are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.

Yesterday’s contribution was written by Chris Stoll, senior staff attorney at the National Center for Lesbian Rights.

If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!

By Ari Ezra Waldman

It is an honor to participate in this symposium with this outstanding group of experts. I want to thank the Courage Campaign and the team for inviting me. I look forward to learning from and engaging with the community.

Today, I would like to discuss the narrow holding in Perry v. Brown and how the Ninth Circuit boxed itself into a logical corner that could have been avoided.

According to Judge Reinhardt’s majority opinion, Prop 8 did something simple, yet exceedingly harmful: it took away the word “marriage” from gay people, but left every other right associated with domestic partnerships, adoptions, and so on intact (Perry v. Brown, slip op. at 35). In doing so, Prop 8 identified something vital, an institution that is so essential to human life and dignity, and picked out one group that is not worthy of recognition or inclusion.

So, the question was whether the people of California had a legitimate reason to enact a constitutional amendment that served only to take away the right of same-sex couples to dignify their relationships with the word “marriage”? This was the narrowest way to construe the case. As you might recall, District Court Judge Vaughn Walker decided that same-sex marriage bans violate due process (by denying gay people the fundamental right to marry) and violate equal protection (by treating gay people differently than straight people for no legitimate reason). The Ninth Circuit could have affirmed on those grounds, but chose narrower grounds instead – namely, Prop 8 violated equal protection because it took away an already existing right to marry for no other reason but to harm and discriminate against gay people. To come to that conclusion, the court quoted liberally from Romer v. Evans, another (albeit broader) case where the majority took away rights simply because of animus toward gays.

In Romer, the people of Colorado passed Constitutional Amendment 2 banning any legislative or executive or judicial body in the state from enacting an anti-discrimination law that included sexual orientation. The Supreme Court found no legitimate rational basis for doing so, inferring that it could only have been based on animus toward gays and nothing more, a rationale the Constitution cannot abide. Judge Reinhardt admitted that Romer was broader, but, like Amendment 2, Prop 8 “worked a meaningful harm” on a unique class of persons by withdrawing a right, treating one group unequally, and gave one group a special and unique legal disability (46).

The legitimacy of that answer in Perry requires that either (a) the sheer breadth of Amendment 2 was not necessary to the conclusion in Romer and that all that was necessary was a taking away of rights that “worked a meaningful harm” on an unpopular group, or (b) Prop 8 was just as broad and harmful. Judge Reinhardt seems to want it both ways: At one point, he dismissed the astounding reach of Amendment 2, noting that the real Constitutional evil in Romer was the taking away of rights, however many rights were taken away. And yet, earlier in his opinion, he spoke eloquently about the essential importance of the word “marriage” and its importance for gay dignity, equality, and true membership in society.

This highlights the central logical flaw inherent in the court’s narrow construction of the case and its attendant narrow holding.

Judge Reinhardt is wrong to intimate that the breadth of Amendment 2 was immaterial. Romer’s allowance for an inference of animus didn’t hinge on the mere fact that rights were taken away from an unpopular group; rather, it was the breadth of the law that took away those rights that proved the antigay hatred. So, if Romer truly answers the question in Perry, the breadth of the harm effectuated by Prop 8 has to be similarly broad.

Despite Judge Reinhardt’s protestations to the contrary, his narrow construction of Prop 8 made that argument that much more difficult. How can the harm be as great as denying one group sweeping access to every legislative, executive, and judicial body in the state if, as the court noted, Prop 8 left all adoption, domestic partnership, and other family laws intact?

There are two ways out of this quagmire. First, we could show that denying “marriage” is a devastating thing. Judge Reinhardt tried to take this course in Perry, but he could have gone further. State recognition of the marriage of two individuals in love is more than the sum of thousands of state and federal benefits that come with the designation. Marriage licenses bring with them stability, a sense of belonging, an acknowledgment from the state that a union is valid, good, and a boon to society. Anything less is separate and unequal, reminding gays that they, and their love, are somehow illegitimate, lacking moral worth, and undeserving of honor. This is why marriage recognition for gays is essentially an illiberal, almost Aristotelian quest for honor.

Second, we could recognize that Perry is not simply about how wrong it is to take rights away, but also the illegitimacy of any denial of marriage recognition for gay persons. Whether it is Prop 8 taking away marriage rights or any of the myriad of gay marriage bans that were preemptively passed in 2004, all of them work the same meaningful and broad-based harm by burdening gay persons and no others for no legitimate reason. By trying his best to make Perry narrow and immune from rejection by the Supreme Court, Judge Reinhardt inadvertently made his legal argument harder.

But, despite the gloss that Judge Reinhardt gave Romer, that alone cannot justify Supreme Court review. In fact, almost everything about this case counsels against a grant of certiorari: the narrow holding ensures that Perry will apply only to California; there is no circuit split on any issue raised in the case; and the Supreme Court would likely rather take the clear cut Defense of Marriage Act cases before diving into the morass of state gay marriages.

And, this would be a positive outcome for the LGBT community. Granted, we may eventually need the Supreme Court to weigh in on gay marriage bans. But, experts are nervous about the current court’s willingness to do so today. Plus, the DOMA case, Gill v. Office of Personnel Management, offers a wider path for a progressive victory (both conservative and liberal jurists think DOMA fails Constitutional scrutiny). If the Supreme Court denies review, gay couples could marry in California and we can lean on a federal appellate court opinion that struck down a ban on gay marriage. These are victories that will have meaning on Main Street and at One First Street.

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his Ph.D. at Columbia. He graduated from Harvard Law School and Harvard College. His scholarship focuses on technology, privacy, speech, and gay rights. He writes a weekly LGBT Law column at

Twitter: @ariezrawaldman


  • 1. truthspew  |  June 26, 2012 at 9:27 am

    It does make sense that DOMA needs to be dismantled first. That takes the constrictions off the courts to then look at marriage bans in a different light, one that shows it is purely based in animus toward LGBT people and nothing more.

  • 2. AnonyGrl  |  June 26, 2012 at 9:30 am

    Thank you! A very cogent and educational piece!

  • 3. sfbob  |  June 26, 2012 at 9:43 am

    Is it possible that Reinhardt's strategy was intentional? Denial of cert for Perry would immediately grant gay and lesbian Californians the right to marry. That is probably the best possible outcome for this particular case, which includes a very particular set of circumstances.

  • 4. AnonyGrl  |  June 26, 2012 at 10:09 am

    It should NOT be his strategy. He should rule on the merits of the case, not play favorites with the outcomes.

  • 5. Jamie  |  June 26, 2012 at 12:17 pm

    Jurisprudence states that cases should be decided on the narrowest grounds possible. This is what was done.

  • 6. Sagesse  |  June 26, 2012 at 9:46 am


  • 7. Scottie Thomaston  |  June 26, 2012 at 9:48 am

    I agree that the reliance on Romer was probably a bit off. The "taken away" aspect seems to be wholly invented by Reinhardt. And since his opinion lacks any specific tie-in to gay rights, is this principle supposed to apply across the board? If there's a pre-existing right of any kind, and someone in a state proposes a constitutional amendment to get rid of that right, would amending the state constitution be illegal simply because of the "taking away" of some right?

    The misuse seems to be widespread, too: DOMA cases (notably the First Circuit) are employing the rationale to strike down the law, except they seem to be saying that Romer can apply even when the courts can't find any animus in enacting the law. But one of the basic points of the case was that animus by itself is no rational basis to pass a law. It seems significant to leave that finding out of the analysis.

  • 8. AnonyGrl  |  June 26, 2012 at 10:11 am

    There was quite a bit of talk when the ruling first came out that Rheinhardt is the most reversed judge on the Ninth Circuit bench, and that possibly he kept hs ruling narrow to keep it from being overturned.

    Any thoughts on that?

  • 9. Scottie Thomaston  |  June 26, 2012 at 10:28 am

    Oh, yeah, he's considered the most liberal judge on the bench. His opinions are reversed quite a bit and the Ninth Circuit in general is disliked by the Supreme Court.

    Since the opinion was very much unlike many of his past rulings it does seem like he kept it narrow so that it has a chance of being upheld. But I guess I don't see the point of keeping it so narrow that he had to distort precedent to do it. That may actually guarantee review – what if Kennedy wants to clarify what Romer meant, and rule that Reinhardt was incorrect?

  • 10. AnonyGrl  |  June 26, 2012 at 10:50 am

    Is it possible that Kennedy would clarify Romer and still rule in our favor? So not really overturn Reinhardt, but broaden the ruling?

  • 11. Scottie Thomaston  |  June 26, 2012 at 11:08 am

    It is definitely possible. Justice Kennedy is… interesting. He's kind of egotistical and likes having a lot of personal power. (There are quite a few really great pieces of writing about him.) I get the impression that he loves the fact that big decisions like this are almost entirely up to him. He could decide to 'do more' for us or something.

  • 12. Jamie  |  June 26, 2012 at 12:21 pm

    I don't know if there is any basis to state that he is disliked by the Supreme Court.

  • 13. Kevin  |  June 26, 2012 at 12:38 pm

    Agreed. Nor is there must purpose to describing a Supreme Court justice as "egotistical" and one who enjoys "personal power." Name me a judge would wouldn't enjoy feeling powerful.

  • 14. Scottie Thomaston  |  June 26, 2012 at 1:50 pm

    Apologies if the language was harsh, but I've definitely read a lot of writing on Justice Kennedy that backs me up, whether I may have been a little too harsh in the language or not.

  • 15. Mike in Baltimore  |  June 26, 2012 at 8:17 pm

    I agree with the egotistical judge comment you gave, but especially for courts lower than SCOTUS.

    Several years ago, I was in the jury pool for a case in Baltimore City Superior Court. The judge CLEARLY let it be known that the case would not last more than two weeks. The reason she gave was that she had non-refundable tickets to China, and she was going to take that trip to China, come hell or high water. (Fortunately for me, I was dismissed from the jury pool, so I don't know how long the trial actually took.)

    A couple of years later, she was dismissed from the bench (for other reasons, but I'd be extremely surprised if her 'trip to China' comments didn't enter the minds of those who dismissed her).

  • 16. Leo  |  June 26, 2012 at 10:40 am

    If there's a pre-existing right of any kind, and someone in a state proposes a constitutional amendment to get rid of that right, would amending the state constitution be illegal simply because of the "taking away" of some right?

    I think Reinhardt would say, "No, just as long as it's rationally related to a legitimate state interest. Otherwise, yes."

  • 17. AnonyGrl  |  June 26, 2012 at 10:46 am

    That makes good sense.

  • 18. Jamie  |  June 26, 2012 at 12:24 pm

    The "taking away" of rights is code for the fact that a decision was made. If you had a blue car given to you and you decided to paint it red, you clearly made a decision that you liked red better. If you left it blue, there could be all sorts of reasons that you did so.

  • 19. AnonyGrl  |  June 26, 2012 at 12:34 pm

    i don't quite get what you are getting at here. The equivalent would be that everyone has blue cars, but they voted that our cars must be painted another color, we cannot have blue cars.

    Not OUR decision, but something that the majority voted to take away from us.

  • 20. Scott Wooledge  |  June 26, 2012 at 2:08 pm

    I can't make any sense of how that analogy relates to the state of California granting the right to marry, then rescinding the right to marry.

  • 21. Kevin  |  June 26, 2012 at 12:13 pm

    The "taking away" was not invented by Reinhardt. It comes directly from Justice Kennedy in Romer. Amendment 2 was proposed and adopted in order to "take away" rights granted by non-discrimination ordinances adopted by a couple Colorado municipalities.

    Although it is true that the common law looks to factually analogous situations for guidance, it will not simply ask whether some gov't action has rescinded a right and rotely invalidate that measure. It will ask whether the law's purpose is legitimate and how well the measure fits that aim.

  • 22. Straight Dave  |  June 26, 2012 at 2:15 pm

    The problem isn't changing our minds about what rights to grant to people, since laws are being changed all the time. The problem in both the Perry and Romer cases is that rights were taken away from only a select group of people who were singled out for no legitimate reason. If a state took away alcohol purchase rights for 18-20 year olds (which NY once did), that is legitimate for public safety reasons. If the right to drive faster than 55 MPH was take away from the entire country (which it once was), at least it applied equally to all residents. The Perry and Romer amendments failed because they were not applied uniformly to everyone, or have a good reason for their selectivity. The facially-neutral "marriage definition" BS is just a smokescreen for "we know this really only harms one group of people and that's exactly why we're doing it".

  • 23. Adam Bink  |  June 26, 2012 at 10:27 am

    Thanks for stopping by, Ari. An excellent and thought-provoking read.

  • 24. Tyler  |  June 26, 2012 at 11:13 am

    There actually is a circuit split–the first circuit ruled that Baker forecloses attacks on state laws like proposition 8 and the ninth circuit said it doesn't apply to this case. It's not a clean cut split but it's still important.

  • 25. Kathleen  |  June 26, 2012 at 11:22 am

    In the 1st Circuit cases, the talk of Baker and how it applies to a general right to marriage for same sex couples is just that – talk. That wasn't the issue before the court, so it isn't a holding in the case. As such, this doesn't create a circuit split.

  • 26. Guest  |  June 26, 2012 at 1:26 pm

    Ari, that shit is fire. Excellent.

  • 27. Jay Jonson  |  June 26, 2012 at 4:30 pm

    Both Perry and the First Circuit opinions in Massachusetts and Gill were decided on narrow grounds. Interestingly, however, whereas Judge Rheinhardts relied on Romer, the unanimous three-judge panel in Massachusetts and Gill went out of their way to say that Romer was not applicable to DOMA because they were eager to deny that there was any animus involved. Despite the overwhelming evidence of the Congressional history, they said that just because a few congressmen said disparaging things about gay people, that did not mean that Congress as whole (which passed DOMA overwhelmingly) was acting out of impermissible bias. Interestingly, the dissenters in the Perry case (inlcuding the three who wanted to grant en banc review as well as Smith) said the same thing about the voters of California. Just because the campaign attempted to stir up prejudice and bias, they said, did not mean that the voters cast their votes out of bias. In any case, whichever case the Supreme Court decides to review, it will not be bound by the terms in which the cases were decided.

  • 28. Steve  |  June 27, 2012 at 2:37 am

    Oh yeah. Which is why it's all the more silly that BLAG and other Republicans are so butthurt in claiming that the courts said that they passed DOMA because they hate gay people. That's what happened, but the courts went out of the way to say that it wasn't so and went to great length to ascribe valid motives to them.

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