Faculty Journal Articles and Book Chapters
Abstract
The Supreme Court's opinion in United States v. Windsor has puzzled commentators, who have tended to overlook or dismiss its ultimate conclusion that the Defense of Marriage Act was unconstitutional because it arose from animus. What we have in Justice Kennedy’s opinion is Windsor Products — an outpouring of decades of constitutional development whose fountainhead is Carolene Products and whose tributaries are the gay-rights and federalism streams. This paper presents the constitutional anti-animus principle, including what constitutes animus, why it offends the Constitution, and how the Supreme Court determines it is present. The paper also discusses why the Court was justified in concluding that DOMA arose from animus by looking at the textual, contextual, procedural, effectual, and pretextual factors that explain the law’s passage.
Publication Title
Supreme Court Review
Document Type
Article
Keywords
constitutional law, equal protection, animus, DOMA, federalism, gay rights, gay marriage, same-sex marriage
Recommended Citation
Dale Carpenter, Windsor Productions: Equal Protection from Animus, 2013 Sup. Ct. Rev. 183 (2013)
