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

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

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Title: Constituting Status: An Analysis of the Operation of Status in Perry v. Schwarzenegger
Author: Flum, Nora
Citation: Nora Flum, Constituting Status: An Analysis of the Operation of Status in Perry v. Schwarzenegger, 33 Women's Rights L. Rep 58 (2011).
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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.
Terms of Use: This article is made available under the terms and conditions applicable to Open Access Policy Articles, as set forth at http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#OAP
Citable link to this page: http://nrs.harvard.edu/urn-3:HUL.InstRepos:10859497
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