Law Commons^™

The Dead End Of Animus Doctrine, Dale Carpenter

Faculty Journal Articles and Book Chapters

Hatred is as old as our civilization. So is the moral principle that one should not hate others and should not act on such hatred. Concerns that an angry or fearful majority might nevertheless treat people maliciously were present both at the beginning of our constitutional Republic and in its most divided epoch. The very structure of our government—dividing and separating powers—and our most hallowed egalitarian principle—Equal Protection of the Laws—were seen as safeguards against decisions driven by a “bare . . . desire to harm.” Such decisions are blasphemy in our legal heritage. Half a century ago, the Supreme …

Windsor Products: Equal Protection From Animus, Dale Carpenter

Faculty Journal Articles and Book Chapters

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 …

Is Lawrence Libertarian?, Dale Carpenter

Faculty Journal Articles and Book Chapters

The Supreme Court’s decision in Lawrence v. Texas is no doubt a shock to those pursuing an antihomosexual agenda. To most Americans, however, the decision is less an ipse dixit announcing radical social change than it is a belated recognition of what they had already learned about the humanity and dignity of gay people. Rather than radically changing constitutional principle, the Court has corrected its own erroneous understanding of the facts that underlay its application of constitutional principle in the past. Rather than leading the nation, the Court has caught up to it.

Part I of this essay lays out …

Grutter And Gratz: A Critical Analysis, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

This Article will analyze the Grutter and Gratz opinions, especially Justice O'Connor's important opinion for the majority in Grutter, and will consider the significance of these decisions in terms of university admissions policy, justifications for racial preferences, and equal protection doctrine. The article will conclude that the Court's defense of the use of racial preferences does not square well with the Powell opinion in Bakke on which it relied so heavily. It will suggest that the Court could have offered a more persuasive explanation for the result it reached but probably felt precluded by precedent from doing so.

The Unknown Past Of Lawrence V. Texas, Dale Carpenter

Faculty Journal Articles and Book Chapters

This Article is an attempt to fill in some of the gaps in the public's knowledge of the case Lawrence v. Texas. Much of the rich post-arrest history of the case has been ignored. But for the courage, insight, and initiative of three men in particular, the arrest might have been another forgotten episode in what the author calls the under history of the Texas sodomy law, the history not told in appellate opinions or in most other accounts.

Section II reviews the "somewhat known" past, tracing the evolution of the Texas sodomy law from a statute so facially …

A Conservative Defense Of Romer V. Evans, Dale Carpenter

Faculty Journal Articles and Book Chapters

In his argument for an alternative conservative response to Romer v. Evans, the author outlines the majority and dissenting opinions in Evans to identify what he takes to be the decision's import. Next, he outlines some of the main themes of conservative political and legal thought, concentrating especially on Edmund Burke. He then argues the common conception of Burke as an intransigent defender of the status quo and of present traditions and practices is a misreading of him. Finally, he discusses the conservative underpinnings for Evans in light of this intellectual history, with an emphasis on the profoundly conservative instincts …