In Perry v. Brown, Judge Stephen Reinhardt, writing for the Ninth Circuit, reasoned that California’s Proposition 8 violated the federal Equal Protection Clause because it took the right to marry away from same-sex couples. California, unlike any other state, allowed same-sex couples to marry and then withdrew that right. According to the Perry Court, the fact that California took marriage away from same-sex couples is critical to the constitutional analysis and thus to the outcome. Since California is the only state to have first granted and then withdrawn the right to marry, the Court says several times, the decision is only applicable to California.

Is the Court right about that? The answer to that question makes an enormous difference. As I’ll discuss at the end of this comment, if Perry really only applies to California, it is a far less compelling case for Supreme Court review. Moreover, even though the Court has taken the case, the resulting decision could well be quite limited no matter which way it comes out. More on that later. First, on to the central question to which this comment is addressed: Is the Perry decision really limited to California?