March 20, 2012
“There is a concern among supporters of marriage equality, especially those in the legal academy, that the decision of the Ninth Circuit in Perry v. Brown was too good to be true or, perhaps, too clever to be sustainable.
“I disagree on two counts. First, I read the opinion as being far more nuanced than it has been given credit for, and believe that its elaboration of the role of animus in judicial review is an important contribution to equal protection doctrine. Second, critics are missing a deeper point: the greatest political strength of the Perry opinion lies not in the short-term question of whether the Supreme Court will accept review, but in its contribution to the more enduring issue of how courts can balance their role of serving as an antimajoritarian check on populist retaliation against minorities while also preserving the values of popular constitutionalism.”