The Ninth Circuit’s 2-1 ruling in Perry v. Brown, at its core, rests on the basic, but profoundly important, principle that the Constitution guarantees equality under the law to every American and prohibits the government from treating any individuals as second-class, inferior persons.  The majority opinion, authored by Judge Stephen Reinhardt, correctly concluded that the Equal Protection Clause guarantees equality to all persons and forbids any state from taking away rights from any persons based on prejudice or bias.  The majority held that, even when employing rational basis scrutiny, the lowest form of constitutional scrutiny under the Equal Protection Clause, courts must ensure that states respect the Fourteenth Amendment’s essential guarantee of equality under the law and do not treat any individuals as inferiors. 

Proposition 8 failed this review.  As Judge Reinhardt wrote, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California, and to officially reclassify their relationships and families as inferior . . . .”  The dissent, authored by Judge N. Randy Smith, a conservative judge appointed by President George W. Bush, rejected this basic mode of analysis.  In Judge Smith’s view, the Equal Protection Clause provides virtually no protection from state-sponsored discrimination in cases where rational basis review applies.  Courts, he argued, must exercise “extreme judicial restraint” and must defer to the government (or, as here, its proxies, the Proposition 8 proponents) unless its arguments are so off the wall as to be “wholly irrelevant” to any imaginable legitimate interest.  Under this standard, the government basically always wins. 

There is already a flood of commentary on Perry, with some calling the ruling “wobbly” and a number of prominent professors, including UCLA Professor Eugene Volokh, siding with the dissent’s argument that the rational basis test was met here.  There is a certain logic to this criticism:  the dissent’s version of rational basis review has deep roots in the law, and a long line of Supreme Court opinions emphasizes just how deferential rational basis review should be.  But, on first principles, Judge Reinhardt’s majority opinion is the only one faithful to the text and history of the Equal Protection Clause.  Giving blanket deference to states to treat gay men and lesbians and other disfavored people as inferior, second-class persons cannot be squared with the constitutional text’s universal guarantee of equality to all persons.  

As CAC’s text and history narrative, Perfecting the Declaration, demonstrates, the Equal Protection Clause is a sweeping guarantee of equality for all persons, without exception.  Proposed in 1866 after a bloody civil war fought over slavery and ratified two years later, the Equal Protection Clause perfected the Declaration by writing into the Constitution’s text that all “person[s]” are equal, not just that “all men are created equal.”  In ratifying the Fourteenth Amendment, the American people redeemed the Constitution from the sin of slavery by adding to our foundational charter a universal guarantee of equality covering every person in the United States.  Since then, “We the People” have added to the Constitution’s protection of equality in a series of other amendments that underscore that equality is at the core of our constitutional order.  As Perfecting showcases, the full sweep of our constitutional history – the principle of equality first stated in the Declaration, perfected in the Equal Protection Clause, and further illuminated in later amendments – supports a broad reading of the Constitution’s guarantee of equality. 

Much of the commentary critical of Perry argues that the majority created a “one way ratchet,” preventing the people of California from responding to the ruling of their state Supreme Court recognizing a fundamental right to marry for all Californians regardless of sexual orientation.  But the majority in Perry properly rejected the notion that the people of California could take away from gay men and lesbians the right to marry for reasons that violate the Fourteenth Amendment’s guarantee of equality.  In making the fundamental point that rational basis review cannot be used to supplant the text’s universal guarantee of equality under law, Perry owes a huge debt to Justice John Paul Stevens, who long ago recognized that “[t]here is only one Equal Protection Clause.  It requires every State to govern impartially,” and an even bigger debt to Justice Anthony Kennedy, who wrote the U.S. Supreme Court’s opinion in Romer v. Evans.  As the Court  held in Romer, under the Equal Protection Clause, states may not strip gay men and lesbians of rights basic to “ordinary civic life in a free society” in order “to make them unequal to everyone else.”  That’s not wobbly; it’s the essential meaning of the Fourteenth Amendment’s guarantee of equality.