Author Archive | Dale Carpenter

At least the Ninth Circuit, in contrast to the California Supreme Court, had the decency to wait until after my incommunicado vacation ended. I agree with Eugene that the best, though hardly inescapable, reading of Lawrence is that it recognizes a fundamental right. I argued for that interpretation in a law review article shortly after […]

Citations in judicial opinions are about the only way legal academics know that their scholarship is being considered by someone other than other legal academics and that it might even be having some real-world effect. The use of secondary sources in last week’s California marriage decision will delight some of the authors and dismay others. […]

The Los Angeles Times has published an interesting interview with California Chief Justice Ronald George, author of the marriage decision. Some excerpts: In the days leading up to the California Supreme Court’s historic same-sex marriage ruling Thursday, the decision “weighed most heavily” on Chief Justice Ronald M. George — more so, he said, than any […]

My co-blogger Todd Zywicki asks a very good question: So the question is, if you get rid of the “man-woman” prong as largely arbitrary, why does this not lead to getting rid of the “one-one” prong as well? It seems like the new line is just as arbitrary as the old one. The possible slippery […]

So the California Supreme Court did it. In an extraordinary, sophisticated, and far-reaching opinion (available here), the California Supreme Court held (1) that the fundamental right to marry protected by the state constitution includes the right of same-sex couples to marry, and (2) that exclusion of same-sex couples from marriage burdens their fundamental interest in […]

So said the Michigan Supreme Court in a 5-2 decision today. By state constitutional amenment in 2004, Michigan voters barred the state from recognizing same-sex marriages. But the awkwardly worded amendment went further: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man […]

I’ll be rafting through the Grand Canyon and unavailable for ten days, May 8-18. No email, no Internet, no cell phone, no TV, no radio, no Pony Express. If the California Supreme Court breaks out on us, you’ll have to deal with them on your own.

The exchanges Ilya, Orin and I have had about Burkeanism have helped to sharpen where the real disagreements are. There is more common ground than at first it seemed, though after Ilya’s latest post I do see more clearly where we may differ. It turns out that Ilya’s view of “coercively imposed traditions” — practices […]

The woman who challenged Virginia’s anti-miscegenation law, resulting in the most appropriately named case in Supreme Court history (Loving v. Virginia), died Friday. Story here.

My co-conspirator Ilya criticizes some modern Burkeans for over-valuing tradition and under-valuing the possible benefits of rapid change. Orin offers some responses here that seem right to me, but that don’t persuade Ilya. Since I doubt Burkeans want to over-value or under-value anything (who would?), I am not yet sure there is genuine or very […]

Burkeanism isn’t so much a philosophy as it is an attitude or disposition. As I see it, Burkeanism is not primarily about a commitment to any particular set of policy outcomes, though respecting tradition and continuity will tend to confine one’s choices about policy in the short- and medium-term. Instead, Burkeanism suggests great humility about […]

In an April 4 lead editorial, the New York Times referred to Berkeley’s “inexplicable” employment of Professor John Yoo, author of the controversial “torture memos.” Dean Christopher Edley responds: Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. […]

Video of the presentations at the symposium on conservatism and gay marriage — held at the South Texas College of Law in Houston on February 15 — is now available for viewing online here. The presenters were: Charles Murray, David Frum, Gerard Bradley, Jesse Choper, Jonathan Rauch, Robert Nagel, Teresa Stanton Collett, and me.

I’ve now listened to the oral argument in the California marriage case — all 3 hrs, 38 minutes of it — and have a few impressions. First, the most likely result is that the gay-marriage litigants will lose 4-3 or possibly 5-2. I defer to those more expert about that court, but based on the […]

Today the California Supreme Court heard oral argument in In re Marriage Cases, involving a challenge under the state constitution to the state’s exclusion of same-sex couples from marriage. A video of the three-hour oral argument can be found here. The briefs in the cases, including the numerous amici, can be found here. A decision […]