The Overlooked Benefit of Minimalism: Perry v. Brown and the Future of Marriage Equality


Few decisions are so roundly criticized as the United States Court of Appeals for the Ninth Circuit’s decision in Perry v. Brown. Some same-sex marriage opponents predictably called it a form of “judicial tyranny,” while some same-sex marriage proponents described it as “dishonest and foolish.” If the United States Supreme Court affirms Judge Reinhardt’s Perry opinion in full, neither side will be satisfied fully.

Perry drew this criticism because it dished out cold comfort to both sides of the same-sex marriage debate. Same-sex marriage advocates were elated when the United States District Court for the Northern District of California found a fundamental right for same-sex couples’ freedom to marry.  The Ninth Circuit’s much narrower ruling–that California’s Proposition 8 could not take away, by popular referendum, a right already enjoyed by a minority group–side stepped the lower court’s sweeping opinion. The victory that advocates had achieved in the District Court, though affirmed, was largely hollowed out as a result.

Just as the Ninth Circuit’s process-based, minimalistic decision fell short of the broad, sweeping decision that many same-sex marriage advocates hoped for, it fell short of the full-scale victory that marriage opponents sought, too. The District Court’s decision set the stage for the nationalization of same-sex marriage if a fundamental right to same-sex marriage ultimately triumphed in the Supreme Court. Yet, if the Supreme Court affirms the Ninth Circuit’s narrower decision, California–the country’s most populous state–will nonetheless have same-sex marriage.

Notwithstanding dashed hopes on both sides, the Ninth Circuit’s narrower decision, if upheld, would have the singular benefit of allowing the “significant constitutional questions” surrounding same-sex marriage to “percolate[ ] in the courts such that the ‘perspective of time’ helps to shed more light on the weighty issues they present.” The need for percolation is particularly imperative because, as the City of San Francisco highlighted in its brief in opposition to certiorari, “this case raises issues that are currently the subject of intense legislative and popular debate.”

Not least among the issues being resolved by the state legislatures that have considered same-sex marriage legislation to date is how best to balance two compelling societal interests in our plural democratic society-marriage equality and religious liberty.” Through sometimes bruising legislative battles, seven jurisdictions crafted nuanced laws that recognize same-sex marriage while providing important, albeit imperfect, protections for the religious liberty of those who adhere to a purely heterosexual view of marriage.

By upholding the Ninth Circuit’s narrow decision, the Supreme Court would allow California, along with other states, to contribute to this continuing debate through the democratic process. If the Ninth Circuit’s decision is left in place, the California legislature could also enact religious liberty protections like those enacted in other states. The Ninth Circuit’s decision explicitly contemplates this when it rejected the claim that Proposition 8 furthered California’s religious liberty interests to “decrease the likelihood that religious organizations would be penalized, under California’s antidiscrimination laws and other government policies concerning sexual orientation, for refusing to provide services to families headed by same-sex spouses.”‘  Instead, Judge Reinhardt said that religious liberty protections were “properly read as an appeal to the Legislature, seeking reform of the State’s antidiscrimination laws to include greater accommodations for religious organizations.” Dean Martha Minow similarly emphasized the value of incremental change when she wrote, “We do not in the abstract resolve the tension between respecting religious groups and ensuring each individual protection against discrimination; nor do we resolve it quickly. Instead, we struggle over time, in courts, legislatures, private settings, and complex negotiations.”

As this Essay shows, it is in the crucible of the legislative process that stateshave hammered out state-specific solutions to the question of how best tobalance marriage equality with religious liberty. Experience shows that over the last decade, marriage equality and religious liberty protections have shared an inseparable fate, rising and falling together.

Suggested Reading