Last Perry Post for Now, I Promise


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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10 Responses

  1. Avatar Stephen says:

    I might be misunderstanding what you’re saying, but I think the resolution to your quandry is that Walker is arguing two different grounds:

    1.) That the ban is a violation of the Equal Protection Clause

    2.) That it violates due process

    The “suspect class” distinction only applies for the Equal Protection part. A lot of times in law, you’ll see a lawyer or a judge arguing two different things that don’t intersect, but that’s legal because each claim is read as being separate and distinct from the other claims argued, implying nothing about the other. If you’re familiar with the process of demurrer in civil cases, it’s a preliminary form of response to a legal complaint that assumes every factual claim that the complainant made is true, and challenges the legal justification and permissibility for the claim.

    It’s like if you were defending someone at trial and you argued “My client X didn’t do this, but even if they did you’d still have to find him not guilty because what he presumably did is legal in context (self-defense or something). Based on what I’ve read of the decision, that’s what’s happening here. Walker seems to have done a very good job of making this thing as bulletproof as he could.Report

  2. Avatar Mark F. says:


    What , in your view, is the best argument the anti-gay side can use on appeal? Isn’t it true that Justice Thomas, for example, has upheld laws he thought were “silly” (see his dissent in Lawrence v. Texas) and does not really agree with the “rational basis” test? So the plaintiffs could convince him the law was idiotic but he will probably not strike it down.

    It seems to me that you can also argue “equal protection” does not apply to gays under an “original understanding” of the 14th Amendment. Heck, the court ruled that forced racial segregation was fine until Brown.

    Note: I support gay marriage.Report

    • Avatar Jason Kuznicki says:

      @Mark F.,

      Actually, you couldn’t say that forced racial segregation was okay until Brown, because the legislative history of the Fourteenth Amendment makes it clear that government-run or government-sponsored discrimination was certainly something the framers of that amendment thought they were eliminating.

      I believe that equal protection ought to mean that there are no group distinctions made by governments without sufficient justification. Levels of justification will vary according to the groups in question and the types of distinctions being made. It’s a complicated subject, to say the least.Report

  3. Avatar Jamie O'Neill says:

    An interesting aspect of California law pre-Walker was that a same-sex couple could “be” married: they just couldn’t “get” married. I suspect this will be a means for superior courts upholding Walker, but limiting the holding very narrowly to California.Report

  4. Jason – correct me if I’m wrong, but sexual orientation is not a protected class at the federal level, is it?Report

    • Avatar Dave says:

      @Mike at The Big Stick,

      Not yet, and it may never need to be.Report

    • Avatar Jason Kuznicki says:

      @Mike at The Big Stick,

      Before Perry, it had never been declared to be a suspect class, but it was never definitively declared that it couldn’t be, either. Perry argues that it is, but the weight this argument will get on appeal is anyone’s guess. One doesn’t need to sustain the claim of suspect class status to sustain the result.Report

    • @Mike at The Big Stick, I don’t follow how marriage becomes a civil right in lieu of protected class status. For example, my understanding is that we can legally deny marriage to 12 year-olds because protected class status for age does not start until one hits 40. Basically arbitrary bariers are fine as long as they exist for all protected classes. So if the arbitrary barier in this case is the gender of the participants and so long as no protected class can enter SS unions…isn’t the law being satusfied?Report