Stanford Law Review Online: Forgetting Romer
The Stanford Law Review Online has just published an Essay by Susannah W. Pollvogt entitled Forgetting Romer. Pollvogt writes that the Supreme Court’s decision to hear the challenge to California’s Proposition 8 in Hollingsworth v. Perry may result in a narrow holding that severely limits the role of unconstitutional animus in American jurisprudence:
What are the implications of the Court’s decision to grant certiorari in Hollingsworth v. Perry? Advocates of marriage equality may worry that the Court granted 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.
It is important to recognize that the Ninth Circuit’s decision in Perry did not purport to provide a comprehensive account of the doctrine of unconstitutional animus, and it should not be interpreted as doing so. Judicial restraint of the type exercised by Judge Reinhardt in Perry is indeed generally a virtue, but not in circumstances where it perpetuates doctrinal confusion. The marriage equality cases, including Perry, provide the Court with an opportunity to rationalize the doctrine of unconstitutional animus and articulate a clear, consistent, and principled standard for courts to apply going forward.