At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional. The post concludes with a thought on what direction the Supreme Court might take when it confronts the constitutionality of DOMA: Even if the Court is […]
Author Archive | Dale Carpenter
David Blankenhorn’s Journey
David Blankenhorn wrote the book on opposition to gay marriage. It was highly praised by the likes of Robert P. George, Stanley Kurtz, and Maggie Gallagher. It was, I wrote at the time, the best single book making the case against SSM. Later, David was the expert witness who defended Proposition 8 in the constitutional challenge to that […]
Second Circuit Strikes Down DOMA Section 3
By Dale Carpenter on October 18, 2012 12:28 pm in Equal Protection, Same-Sex Marriage, Sexual Orientation
In a 2-1 opinion by Chief Judge Dennis Jacobs, a conservative appointed by the first President Bush, the Second Circuit has joined the unanimous chorus of federal courts striking down Section 3 of the Defense of Marriage Act, which bars federal recognition of same-sex marriages legalized by individual states. The dissenter was Judge Chester Straub, who was appointed […]
Speaking tomorrow
I’ll be speaking tomorrow on same-sex marriage before the student chapter of the Federalist Society at the Lewis and Clark Law School in Portland, Oregon. The event begins at Noon and will last one hour. The student chapters of OUTLaw and the ACLU are co-sponsoring the speech.
The Scalian Logic for Same-Sex Marriage
This week SCOTUSblog is hosting an online symposium about the Supreme Court’s consideration of litigation challenging the federal Defense of Marriage Act and California’s Proposition 8. My contribution begins: Constitutional law makes strange bedfellows. It can even unite supporters and opponents of same-sex marriage. Consider this: If Justice Scalia’s aggressive reading of Lawrence v. Texas (2003) […]
What If the Supreme Court Doesn’t Accept Cert in the Prop 8 Case?
The question whether to accept certiorari in the Prop 8 case will come up at the Justices’ conference on September 24. I think the Court will accept cert, so there won’t be any new same-sex marriages in California in the immediate future. But what if the Court refuses to review the Ninth Circuit’s decision striking […]
Constitutional Law Professors: 87% Support Same-Sex Marriage, But Only 54% Believe It Is Constitutionally Mandated
By Dale Carpenter on September 7, 2012 11:08 am in Academia, California, Constitutional Law, Sexual Orientation, Supreme Court
Eighty-seven percent of constitutional law professors back marriage for same-sex couples, and 7 out of 10 believe the federal Defense of Marriage Act is unconstitutional, but only a slight majority of 54% think the federal Constitution requires states to recognize same-sex marriages. That’s the result of a survey of 485 constitutional law professors that I […]
Speaking at Notre Dame Law School
By Dale Carpenter on September 6, 2012 4:36 pm in Gay Marriage, Religion and the Law, Same-Sex Marriage
On Monday, September 10, during the lunch hour, I’ll be presenting “The Conservative Case for Gay Marriage” at the Notre Dame Federalist Society. Professor John Finnis will respond.
More on the “Tradeoffs” in Allowing SSM and Abolishing Slavery
Commenting on University of St. Thomas law professor Robert Delahunty’s recent op-ed, my colleague Richard Painter shares some thoughts on the subject of limiting the freedom of some people so that others may live in a world unstained by that particular freedom: Let’s put aside for the moment the fact that I don’t see such a tradeoff with abolition of slavery because […]
Lincoln on “Liberty” and Slavery
Apropos the claim that slaveholders lost “freedom” when slavery was abolished, Eugene reminds me of what Abraham Lincoln said in his Address at a Sanitary Fair, in Baltimore, on April 18, 1864: The world has never had a good definition of liberty, and the American people, just now, are much in need of one. We all declare […]
Slaveholders Lost Freedom Because of Emancipation, Argues Con Law Prof
University of St. Thomas Law Professor Robert Delahunty argues in this morning’s Minneapolis Star Tribune that “whenever the law expands the freedoms of one person or group, it necessarily contracts those of another.” Thus, he asserts that if gay couples are granted the freedom to marry, gay-marriage opponents will lose the freedom to live in a world without gay marriage […]
Anonymity Granted to Catholic Donor Opposed to Marriage Amendment, But Amendment Supporters Object
By Dale Carpenter on September 3, 2012 10:01 pm in Constitutional Amendments, Election Law, Gay Marriage, Gay Rights, Same-Sex Marriage
In Minnesota, pro- and anti-gay marriage activists are fighting over political campaign disclosure laws, though this time the usual roles are reversed. On August 17, the Minnesota Campaign Finance and Public Disclosure Board ruled that the group working to defeat a constitutional amendment banning gay marriage does not have to disclose the name of a Catholic contributor to the […]
Federal Judge in Hawaii Rejects Same-Sex Marriage Claim
By Dale Carpenter on August 11, 2012 4:11 pm in Constitutional Law, Gay Marriage, Gay Rights, Same-Sex Marriage, Sexual Orientation
In Hawaii, gay couples may enter civil unions with all the state-based rights and legal protections of marriage, but without the official designation of being “married.” Same-sex couples sued to have the status of marriage, urging that they had a fundamental right to marry under the Due Process Clause and that the state could not […]
David Blankenhorn Changes His Mind About SSM
Over the past few years, David Blankenhorn has been a leading intellectual opponent of same-sex marriage. In 2007, he published The Future of Marriage, which in my view is the most persuasive book opposing it. In 2009 he was the leading testifier in favor of Prop 8 in the Perry litigation. His view was never grounded in anti-gay attitudes, however. […]
First Circuit Unanimously Strikes Down DOMA Section 3
By Dale Carpenter on May 31, 2012 12:12 pm in DOMA, Equal Protection, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
The opinion is here. The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court applied “rational basis with bite” scrutiny based on the arguments that the exclusion (1) denied important federal rights and benefits to a small class of married couples, and […]