Same-Sex Marriage and Perry: A Case for Judicial Minimalism


If the question for an increasing number of polities is not whether to recognize same-sex marriage, but how, it seems no less difficult to answer. In many respects, Perry v. Brown exemplifies the difficulty of this question, which encompasses debates not only about the moral, social, and legal significance of marriage, but also the proper roles of and limits on majoritarian and non-majoritarian decision-making. As the case heads towards the Supreme Court, I draw on Cass Sunstein’s work to call for a minimalist decision. Minimalism is typified by narrow decisions closely tailored to the specific facts of individual cases-and, in this, is often an expression of judicial concern to avoid venturing beyond the issues at hand. In the final analysis, minimalism may entail leaving unanswered the most challenging and contentious legal questions. I share with Professor Sunstein a belief that there is no justification for a general recourse to minimalism; rather, it is sensible in some, but far from all, contexts. my primary objective is thus to sketch some reasons why Perry is an appropriate case for minimalism and why, in particular, the Justices should take into account whether a minimalist ruling might, over the long haul, supply a surer foundation for marriage equality nationally. A second objective is to situate Perry withinrecent international developments. But before this, I reflect on whether the Ninth Circuit’s opinion in Perry is aptly characterized as minimalist.

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