The Past, Present, and Future Role of Hollingsworth v. Perry: An Introduction
Introduction
As this issue of the N.Y U. Review of Law & Social Change goes to print, the Supreme Court will hear Hollingsworth v. Perry in a matter of weeks. The seesawing legal status of same-sex marriage in California over the last eight years will come to an end, or it will not. Either way, the goal of this issue is not to predict any ultimate outcome for the case. You will find here very few guesses on how the Justices may rule, but a feast of suggestions on how they ought to rule. We hope the latter may be of some use in coming months. But more than that, we hope this issue will be a resource in coming decades as a study in the way one case fits into a larger movement.
You have here a time capsule, filled with leading and emerging voices in the LGBTQ movement reflecting on Perry before the Court has its final say, before anyone gets the benefit of 20/20 hindsight. Indeed, these comments were first drafted before the Court had even granted certiorari, and have been only minimally edited since then. This timeline is by design. The printed issue is a companion piece to the live symposium of the same name organized by the Social Change Board–and a long list of crucial collaborators–at NYUSchool of Law in October 2012. We intended to foster a useful conversation in the live symposium by convening key players in the case with other brilliant advocates and asking them to reflect on the case and, with certiorari pending, to imagine the best next step. With this issue, we expand and memorialize that discussion. We are confident Perry stands already as a landmark case in both constitutional law and social-change history; we are delighted to preserve some of the hopes, uncertainties, and strategies behind it in this volume.
Three questions guided both the live symposium, corresponding to threepanels at the live event, and the written volume, corresponding to the threesections contained within. Section one considers how Perry affects the work of LGBTQ advocates working on issues other than marriage equality, or on marriage equality in ways other than litigation. Section two considers how Perry has affected other marriage-equality litigation strategies. Section three considershow, ideally, the Court should decide Perry.
Suggested Reading
Hollingsworth v. Perry: What Should the Court Do?
Evaluates the two approaches that Justice Kennedy could take when deciding Hollingsworth v. Perry.
Slighting the Sex-Discrimination Claim in Hollingsworth v. Perry
Critiques the District Court's use of the sex discrimination theory of marriage equality as too fragmented to provide an adequate model for advocates.
Marriage and Mass Incarceration
Critiquing the marginalizing effect institution of marriage has on those outside of non-state-sanctioned relationships, such as trans and incarcerated persons.
Divorcing Marriage from Its Incidents: Framing Perry as a Celebration of Family Self-Determination
The reasoning in an opinion in favor of gay marriage could frustrate efforts to achieve the goals of economic justice and dignity for non-marital families.
How Has Perry Affected Other Marriage Rights Litigation Strategies: Reflections on a Silver Anniversary and the Golden Rule
Reflections on the LGBT movement since the author was at NYU in RLSC and impact of Perry moving forward.
Book Excerpt: Kenji Yoshino, Speak Now: Marriage Equality on Trial
This is an excerpt from Kenji Yoshino’s new book, Speak Now: Marriage Equality on Trial. In his book, Professor Yoshino explores the Hollingsworth v. Perry trial, which he calls “one of the most powerful civil rights trials in American history.” Professor Yoshino