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This essay is a response to an article by: Eskridge Jr., William N., The Ninth Circuit's Perry Decision and the Constitutional Politics of Marriage Equality, in 64 Stan. L. Rev. Online 93 (2012).

This essay examines the impact of Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), the first appellate federal court decision on the constitutional validity of marriage exclusion laws. The author argues that the major contribution of the Perry decision is to illuminate the meaning of animus, a term that is sharply contested in Equal Protection jurisprudence, and to explicate its relationship to standards of review. The Ninth Circuit holds that evidence of animosity toward a disfavored group triggers a heightened rational basis standard of review. The Supreme Court has not yet settled on how to analyze evidence of animus. In his dissent in Romer v. Evans, Justice Scalia ridiculed the idea that believing homosexuality to be immoral could be compared to racial or religious bias. By contrast, in her concurrence in Lawrence v. Texas, Justice O’Connor articulated the principle adopted by the Ninth Circuit in Perry: that laws driven by animus toward a social group are subject to a “more searching” version of rational basis review. The majority of Justices, however, appear to be gunshy about even acknowledging the existence of heightened rational basis review, even though they have been relying on it sub silentio for several decades. The Perry court provides the fullest articulation of it to date.

The Court of Appeals in Perry also takes a new perspective on how courts should assess the validity of popularly enacted initiatives such as Proposition 8. For both proponents and opponents of popular constitutionalism, the gay marriage debates raise the question of whether voters or courts should get the last word in a constitutional democracy when they take polar opposite positions on a minority rights issue. The Perry opinion would impose less a death knell to such initiatives than a set of speed bumps, through which courts would analyze whether a discriminatory provision was the retraction of a right or a failure to extend it, and whether it had a demonstrably legitimate purpose, other than simply the imposition of stigma. In the gay marriage context, the court left open the possibility that limiting marriage to different sex couples could be justified by the desire to discourage “accidental procreation.” However, based on evidence about the campaign to pass Proposition 8, the court found that animus had been the dominant motivation in this case.

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64 Stan. L. Rev. Online 111-116 (2012)