The Perry Litigation and the Changing Political Landscape for Marriage Equality


How has the Perry marriage case affected other marriage equality litigation? A conventional legal analysis would suggest the answer is “not very much.” By the time Judge Walker ruled for the plaintiffs in Perry in 2010, the most significant victories for marriage equality at the state level (Massachusetts in 2003, Connecticut in 2008, California in 2008, and Iowa in 2009) had already occurred. So had the major losses at the state level (Washington in 2006, New York in 2006, and Maryland in 2007), as well as the in-between decisions leading to the creation of civil unions (Vermont in 19999 and New Jersey in 2006). In many ways, these cases, along with the Supreme Court’s 2003 decision in Lawrence v. Texas–which invalidated all sodomy laws ill-provided the foundation for Perry. Justice Scalia’s dissent in Lawrence laid out the argument for a federal constitutional right to marry. ┬áIt was based on (1) the Lawrence majority’s recognition of the role that long-term partnerships of same-sex couples play in the lives of gay and lesbian people, and (2) the majority’s rejection of morality as a justification for discrimination against gay people. The argument was further developed in the various state constitutional cases just mentioned. The evidence so adroitly presented by the plaintiffs in the Perry trial involved many of the same experts that gay rights groups had been presenting for years in those state marriage cases.

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