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New paper on the idea of animus in constitutional law

The Supreme Court’s decision from last summer striking down the Defense of Marriage Act, United States v. Windsor, has spawned a small industry of scholarship analyzing its reasoning and its import for the future, especially on the question whether the Court will rule that states must now recognize same-sex marriages.  On SSRN, I’ve posted the draft of a new paper  analyzing the role of government animus in equal protection doctrine, with special attention to what Windsor added to our understanding of constitutionally impermissible animus. The paper will be published this summer by the Supreme Court Review.  Many people made insightful and appropriately skeptical comments on earlier drafts of the paper.  Among my fellow Conspirators, I’d like to thank Will Baude, Orin Kerr, Ilya Somin, and Eugene Volokh.

From the 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.

You can, as they say, read the whole thing here.


Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.



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