Toward a More Civil Union: Considering Marriage for All

In its February 6, 2012 decision in Perry v. Brown, the 9th Circuit Court of Appeals struck down Proposition 8 (a November 2008 voter referendum in California that banned marriage for same-sex couples) on equal protection grounds, while declining to opine on whether the fundamental right to marry applies to same-sex couples. Proponents of Proposition 8 have petitioned for an en banc review of the decision, and the case continues to revolve around fundamental equal protection principles. While Perry is pending, the 1st Circuit and District Court of Connecticut are considering cases challenging Section 3 of the Defense of Marriage Act (DOMA), Gill v. OPM and Pederson v. OPM, respectively. These cases challenge the federal government’s denial of benefits to same-sex couples that are legally married. Together, Perry, Gill, and Pederson implicate critical questions about fundamental rights and how we understand marriage and federalism.