As the landmark cases of Hollingsworth v. Perry and United States v.Windsor make their way to the Supreme Court, inevitable questions arise about the standard the Court will apply in these cases. Like others, I believe the Supreme Court may well analyze state or federal restrictions on same-sex marriage under a rational-basis framework. That begs the question of which kind of rational-basis analysis it will employ. The Court has been fairly consistent instating that rational-basis review requires governmental action be “rationally related to a legitimate governmental interest.” Yet, as academic commentary has observed, that formulation in fact encompasses two different standards: “ordinary” rational-basis review and rational basis “with bite.” Under the first, the Court would uphold governmental restrictions on same-sex marriage; under the latter, it would invalidate them. So the crucial question is which rational-basis standard the Court will apply.
Critiques the District Court's use of the sex discrimination theory of marriage equality as too fragmented to provide an adequate model for advocates.
Reflection on the current "ephemeral moment" in marriage equality movement and analysis of the minimalist and federalism based litigation strategies.
Reflects on the paradigm relationship that Perry endorses, and provides a historical context in which to locate domestic partnerships in California.
Perry is an opportunity for the court to correct constitutional doctrine by focusing on substantive due process and clarify its marriage jurisprudence.