Constituting Status: An Analysis of the Operation of Status in Perry v. Schwarzenegger
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CitationNora Flum, Constituting Status: An Analysis of the Operation of Status in Perry v. Schwarzenegger, 33 Women's Rights L. Rep 58 (2011).
AbstractThe 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.
Citable link to this pagehttp://nrs.harvard.edu/urn-3:HUL.InstRepos:10859497
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