I don't have to; I was saying that was the state's argument; therefore, Marty is incorrect in saying that the dissenters didn't mention the state's arguments.
On Fri, Jul 3, 2015 at 12:03 PM, Eric J Segall <eseg...@gsu.edu> wrote: > You are saying the SSM bans enacted in the last 20 years were about > procreation? > > Eric > > Sent from my iPhone > > On Jul 3, 2015, at 1:54 PM, "Scarberry, Mark" < > mark.scarbe...@pepperdine.edu> wrote: > > I have to say one last thing before excusing myself from this > discussion. > > > > Justice Roberts’s explanation of the institution of marriage leads to > clearly rational basis for not expanding it to include same sex couples. > Expanding it may affect or dilute the social meaning of the institution and > reduce its effectiveness in accomplishing the goals described by the Chief. > We don’t know whether that will happen, and we never will know, because the > variables can’t be controlled. That’s enough to provide a rational basis. > > > > With regard to whether it is rational to limit the institution to a union > between a man and a woman, but to limit it in various other ways: There are > many reasons why it would be rational not to limit the institution in those > other ways. An inquiry into whether the man and woman are able to have > children would be intrusive (and sometimes would yield the wrong answer). > Ditto for an inquiry into whether they plan to have children, an inquiry > that would be very inaccurate in determining whether the couple really will > have children. There is no age line that can be drawn that accurately > divides women who can bear children naturally from those who cannot, and > there is no age, as far as I know, beyond which a man cannot naturally > father a child. In any case, it is rational not to set different ages for > men and for women. To the extent that the institution is designed to keep > natural parents together as they raise children, any age limit would > rationally be extended by 17 years or more. > > > > Signing off for now. > > > > Mark > > > > Mark S. Scarberry > > Professor of Law > > Pepperdine Univ. School of Law > > > > > > > > > > *From:* Eric J Segall [mailto:eseg...@gsu.edu <eseg...@gsu.edu>] > *Sent:* Friday, July 03, 2015 10:33 AM > *To:* Michael Worley; Scarberry, Mark > *Cc:* Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu > *Subject:* Re: The Remarkable Disappearance of State Justifications in > Obergefell > > > > Except, of course, in our country the premises of that reasoning have > absolutely nothing to do with the benefits of marriage otherwise two > sterile people would not be allowed those benefits. Moreover, as a factual > matter "procreation" can occur in ways other than "relations between a man > and a woman." > > > > Whatever Ed Whelan and Roberts may think, the procreation rationale is > just not rational. > > > > Best, > > > > Eric > > > ------------------------------ > > *From:* conlawprof-boun...@lists.ucla.edu < > conlawprof-boun...@lists.ucla.edu> on behalf of Michael Worley < > mwor...@byulaw.net> > *Sent:* Friday, July 3, 2015 1:21 PM > *To:* Scarberry, Mark > *Cc:* Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu > *Subject:* Re: The Remarkable Disappearance of State Justifications in > Obergefell > > > > My understanding is Roberts did articulate the state's procreation > argument: > > The premises supporting this concept of marriage are so fundamental that > they rarely require articulation. The human race must procreate to survive. > Procreation occurs through sexual relations between a man and a woman. When > sexual relations result in the conception of a child, that child’s > prospects are generally better if the mother and father stay together > rather than going their separate ways. Therefore, for the good of children > and society, sexual relations that can lead to procreation should occur > only between a man and a woman committed to a lasting bond. > > > > On Fri, Jul 3, 2015 at 10:22 AM, Scarberry, Mark < > mark.scarbe...@pepperdine.edu> wrote: > > I have other commitments today and over the next several days, have only > been able to skim the first part of Marty's post, and will likely not be > able to participate further for several days. > > > > With that caveat, let me point out that the view of several justices is > that a new substantive due process right should be declared only when > history and tradition strongly support it at a fairly specific level. That > is all that needs to be said, under their view; our history and traditions > don't support the Court's decision. > > > > Let me also point out that Marty is arguing that state law is > underinclusive, which isn't a strong argument unless a constitutional right > is involved (which is the point at issue and would beg the question) or > some form of heightened scrutiny is required, which gets us back to an > equal protection argument that the majority only obliquely relied on. > > > > Because Marty's post is long (and near the size limit for posts), I'll > truncate it severely and ask readers to refer back to his original post for > the content of it. > > > > Mark > > > > Mark S. Scarberry > > Pepperdine University School of Law > > > > Sent from my iPad > > > On Jul 3, 2015, at 8:56 AM, "Marty Lederman" <lederman.ma...@gmail.com> > wrote: > > Some of you might find this of interest. Reactions and critiques > encouraged, as always. > > > > > http://balkin.blogspot.com/2015/07/the-remarkable-disappearance-of-state.html > > > > *The Remarkable Disappearance of State Justifications in Obergefell* > > Marty Lederman > > Over at the *Slate* "Breakfast Table," I have a post > <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_surprises_obamacare_marriage_jerusalem_passport_arizona_judicial.html> > describing > the handful of biggest surprises in what was in fact (or so I argue) a > Supreme Court Term in which the Justices generally acted according to > predictable form. > > [snip] > > > _______________________________________________ > To post, send message to conlawp...@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > > > -- > > Michael Worley > > J.D., Brigham Young University > > -- Michael Worley J.D., Brigham Young University
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
