Constituting Status: An Analysis of the Operation of Status in Perry v. Schwarzenegger

Abstract

The recent Ninth Circuit decision in Perry v. Schwarzenegger marked a pivotal step forward for the gay rights movement. The decision is the first time a federal court has held that there is a right to same-sex marriage under the United States Constitution. Applying strict scrutiny, Judge Vaughn Walker found that Proposition 8's ban on same-sex marriage violated both substantive due process and equal protection (on the basis of sex and sexual orientation). While the constitutional merits of this decision are of great interest, I will leave such analysis to other scholars. Instead, I believe much can be gained by looking beneath the legal logic of the ruling, to the ideological paradigms that operate below the surface. By ideological paradigms, I do not mean merely the personal opinions of Judge Walker, but the larger societal attitudes and assumptions that manifest themselves within the text. Through a close reading of the opinion, I will examine the ways in which these ideologies interact and converge in often unexpected ways. In particular, I will track the ideological strands inherent in the concept of "status" and the ways in which that single word functions as the driving force behind the entire opinion.