Windsor Products: Equal Protection from Animus

104 Pages Posted: 16 Apr 2014 Last revised: 23 Oct 2014

Dale Carpenter

Southern Methodist University - Dedman School of Law

Date Written: April 14, 2014


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.

Keywords: constitutional law, equal protection, animus, DOMA, federalism, gay rights, gay marriage, same-sex marriage

Suggested Citation

Carpenter, Dale, Windsor Products: Equal Protection from Animus (April 14, 2014). Supreme Court Review (2014 Forthcoming); Minnesota Legal Studies Research Paper No. 14-22. Available at SSRN:

Dale Carpenter (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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