Harvard Law Review Online Forum


Harvard Law Review

Online Forum

Reaction: Salvaging Perry

Andrew Koppelman :: The Ninth Circuit, in Perry v. Brown, deftly avoided forcing the Supreme Court’s hand on the big claim that the Constitution requires recognition of same-sex marriage — a claim likely to be rejected now, though perhaps not a few years from now. Instead, it held that California’s Proposition 8, which stripped same-sex couples of their right to have their unions called “marriages,” was unconstitutional because it reflected a bare desire to harm a politically unpopular group.  READ MORE

Reaction: Splitting the Difference: Reflections on Perry v. Brown

Jane S. Schacter :: The latest chapter in California’s long running debate over marriage equality began when the voters passed Proposition 8 in 2008. Several months earlier, the California Supreme Court had interpreted the state constitution to protect the right of same-sex couples to marry, and Prop 8 amended the constitution to eliminate that right.  READ MORE

Reaction: A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown

Robin West :: The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded in the last few weeks 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.  READ MORE



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