The current situation in California is unique. The Supreme Court reiterated post-Prop 8 in Strauss v. Horton that same-sex couples are entitled to enjoy all the rights the state can confer that opposite-sex couples enjoy, except for the right to call their unions marriages, and except for the exception to the exception, that same-sex couples who were married during the window would still be permitted to be married. To describe the situation is to highlight the absurdity of it.
The strength of Perry lies in this irrationality. Allowing California same-sex couples to obtain all the rights of marriage through domestic partnerships, without allowing them the right to actually marry, shows that there is no legitimate reason for denying same-sex couples that right. The denial has no other purpose than to demean same-sex relationships, or, to use the legal term, to show animus. In the 1996 case Romer v. Evans, the U.S. Supreme Court already ruled that animus alone is no reason to deny any group, including gays and lesbians, the equal protection of the laws. Olson and Boies seek to build on that ruling.
The uniqueness of California’s situation also means that a positive ruling could be limited to California. Courts often like to keep their rulings narrow, and they could do so here. In Perry, the court need not decide that same-sex couples throughout the country have the right to marry under the U.S. Constitution. It need not even decide whether civil unions and robust domestic partnerships are impermissible separate-but-equal constructions. The court could simply decide that a regime like California’s — where some same-sex couples can be married, but others, through a fluke of timing, cannot –is so irrational that it cannot stand. And according to that reasoning, the court could strike down prop 8 in California as a violation of equal protection, and leave the status quo throughout the rest of the country.
And that’s pretty much what the judges ruled.