Re: The Remarkable Disappearance of State Justifications in Obergefell
I agree with Doug that the majority gave short shrift to the state’s reasons because they viewed them as ridiculous and that the dissenters [mostly] didn’t talk about them because they didn’t really believe them, either. I also agree that at least three of the dissenters (not sure about the Chief) think that moral disapproval ought to be sufficient. But to the extent Scalia and Thomas However, to the extent Scalia and Thomas believed there was no right in the first place and [thus] nothing had to be justified, that'd be plainly mistaken, no? Surely the state is required to satisfy at least rational basis review if it discriminates in offering access to this extraordinarily important civil institution. On Fri, Jul 3, 2015 at 12:21 PM, Doug Laycock dlayc...@virginia.edu wrote: I think the majority gave short shrift to the state’s reasons because they viewed them as ridiculous. I think the dissenters didn’t talk about them because 1) they didn’t really believe them either, and 2) they didn’t have to get that far because a) there was no right in the first place and nothing had to be justified, and b) if any justification were required, moral disapproval was enough. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, July 03, 2015 11:55 AM *To:* Law Religion issues for Law Academics *Cc:* conlawp...@lists.ucla.edu *Subject:* The Remarkable Disappearance of State Justifications in Obergefell 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. One of the most remarkable aspects of the Term, I argue there, is what the Court *didn't* do in *Obergefell http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf*--namely, devote much attention at all to the states' asserted justifications for excluding same-sex couples from the institution of civil marriage. That lacuna was no mere oversight--it was a function of the fact that the articulated justifications were threadbare, and that any legitimate justifications were virtually nonexistent. For that reason, I argue, the impassioned opinions of the dissenting Justices will have very little traction in the years to come--they elide the critical point--and the Court's judgment will, in short order, be very widely embraced as self-evidently correct. To be sure, there is, and will remain, a substantial minority of Americans who oppose SSM. But the reasons they do so--primarily, moral disapproval, biblical injunction, anxiety about homosexuality, and occasionally even animus--are unavailable to the states as legitimate justifications; and therefore it's understandable that those justifications--the *actual *grounds for state discrimination--do not even make an appearance in the *Obergefell* opinions. Here's a slightly amended version of the *Obergefell *portion of my *Slate *post: For more than a dozen years, in the scores of cases challenging marriage laws going back to *Goodridge https://scholar.google.com/scholar_case?case=16499869016395834644hl=enas_sdt=6as_vis=1oi=scholarr* and beyond, the briefing, arguments, and written decisions had been dominated by two questions: *First*, is discrimination on the basis of sexual orientation, like sex discrimination, subject to “heightened scrutiny” (in which case the denial of same-sex marriage would certainly be unconstitutional)? *Second*, if not--if rational basis review is applicable--what are the state interests supporting denial of same-sex marriage, and do they satisfy even the very deferential “rational-basis” test? Lawyers, judges, clerks and commentators expended thousands upon thousands of hours on these questions; if I had to guess, I’d say they consumed upward of 80 percent of the time, effort, and resources in the marriage cases over the years, including in *Windsor* and *Hollingsworth* two terms ago, and in *Obergefell* and its companion cases this year. The 90-plus pages of the Justices’ opinions in *Obergefell* don’t mention the first question (the proper standard of review for discrimination on the basis of sexual orientation) at all—not even to reserve it. That's
Re: The Remarkable Disappearance of State Justifications in Obergefell
I disagree with your application of the rational basis text. However, even if true, the irrationality of the argument is irrelevant to the point I am making here. Marty's position was the dissenters gave no justification for the marriage amendments; In fact, Roberts did: procreation. On Fri, Jul 3, 2015 at 11:32 AM, Eric J Segall eseg...@gsu.edu wrote: 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.
RE: The Remarkable Disappearance of State Justifications in Obergefell
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] 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.edumailto: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.commailto: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
Re: The Remarkable Disappearance of State Justifications in Obergefell
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.commailto: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 posthttp://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 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.
Re: The Remarkable Disappearance of State Justifications in Obergefell
Even so, it's noteworthy, isn't it, that Scalia and Thomas were unwilling to repeat the view that moral condemnation is sufficient -- an argument that might have had some traction with their intended audiences nine years ago, in *Lawrence*, but that today apparently is so far beyond the pale that it can't be uttered in a Supreme Court opinion, even by Justices who are willing to say plenty of other outrageous things. On Fri, Jul 3, 2015 at 12:32 PM, Marty Lederman lederman.ma...@gmail.com wrote: I agree with Doug that the majority gave short shrift to the state’s reasons because they viewed them as ridiculous and that the dissenters [mostly] didn’t talk about them because they didn’t really believe them, either. I also agree that at least three of the dissenters (not sure about the Chief) think that moral disapproval ought to be sufficient. But to the extent Scalia and Thomas However, to the extent Scalia and Thomas believed there was no right in the first place and [thus] nothing had to be justified, that'd be plainly mistaken, no? Surely the state is required to satisfy at least rational basis review if it discriminates in offering access to this extraordinarily important civil institution. On Fri, Jul 3, 2015 at 12:21 PM, Doug Laycock dlayc...@virginia.edu wrote: I think the majority gave short shrift to the state’s reasons because they viewed them as ridiculous. I think the dissenters didn’t talk about them because 1) they didn’t really believe them either, and 2) they didn’t have to get that far because a) there was no right in the first place and nothing had to be justified, and b) if any justification were required, moral disapproval was enough. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, July 03, 2015 11:55 AM *To:* Law Religion issues for Law Academics *Cc:* conlawp...@lists.ucla.edu *Subject:* The Remarkable Disappearance of State Justifications in Obergefell 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. One of the most remarkable aspects of the Term, I argue there, is what the Court *didn't* do in *Obergefell http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf*--namely, devote much attention at all to the states' asserted justifications for excluding same-sex couples from the institution of civil marriage. That lacuna was no mere oversight--it was a function of the fact that the articulated justifications were threadbare, and that any legitimate justifications were virtually nonexistent. For that reason, I argue, the impassioned opinions of the dissenting Justices will have very little traction in the years to come--they elide the critical point--and the Court's judgment will, in short order, be very widely embraced as self-evidently correct. To be sure, there is, and will remain, a substantial minority of Americans who oppose SSM. But the reasons they do so--primarily, moral disapproval, biblical injunction, anxiety about homosexuality, and occasionally even animus--are unavailable to the states as legitimate justifications; and therefore it's understandable that those justifications--the *actual *grounds for state discrimination--do not even make an appearance in the *Obergefell* opinions. Here's a slightly amended version of the *Obergefell *portion of my *Slate *post: For more than a dozen years, in the scores of cases challenging marriage laws going back to *Goodridge https://scholar.google.com/scholar_case?case=16499869016395834644hl=enas_sdt=6as_vis=1oi=scholarr* and beyond, the briefing, arguments, and written decisions had been dominated by two questions: *First*, is discrimination on the basis of sexual orientation, like sex discrimination, subject to “heightened scrutiny” (in which case the denial of same-sex marriage would certainly be unconstitutional)? *Second*, if not--if rational basis review is applicable--what are the state interests supporting denial of same-sex marriage, and do they satisfy even the very deferential “rational-basis” test? Lawyers, judges, clerks and commentators expended thousands upon
Re: The Remarkable Disappearance of State Justifications in Obergefell
As even the Chief Justice acknowledges, that is *not* all that needs to be said. Whatever one's views of the proper scope of substantive due process, excluding LGBT individuals from the institution of marriage is unconstitutional unless there is, at a minimum, a legitimate and reasonable state interest in support of such an exclusion. And here, the states and the dissenters can't --and don't -- invoke any such justification. The thrust of my argument is that the reason they don't do so is that everyone knows the *real *reasons for the exclusion -- and for the recent state constitutional amendments, in particular -- are, post-*Lawrence*, inadmissible. But if so, that leaves them with nothing. On Fri, Jul 3, 2015 at 12:22 PM, 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 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.
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 ___ 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.
RE: The Remarkable Disappearance of State Justifications in Obergefell
I think the majority gave short shrift to the state’s reasons because they viewed them as ridiculous. I think the dissenters didn’t talk about them because 1) they didn’t really believe them either, and 2) they didn’t have to get that far because a) there was no right in the first place and nothing had to be justified, and b) if any justification were required, moral disapproval was enough. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, July 03, 2015 11:55 AM To: Law Religion issues for Law Academics Cc: conlawp...@lists.ucla.edu Subject: The Remarkable Disappearance of State Justifications in Obergefell 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 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 post 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. One of the most remarkable aspects of the Term, I argue there, is what the Court didn't do in http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf Obergefell--namely, devote much attention at all to the states' asserted justifications for excluding same-sex couples from the institution of civil marriage. That lacuna was no mere oversight--it was a function of the fact that the articulated justifications were threadbare, and that any legitimate justifications were virtually nonexistent. For that reason, I argue, the impassioned opinions of the dissenting Justices will have very little traction in the years to come--they elide the critical point--and the Court's judgment will, in short order, be very widely embraced as self-evidently correct. To be sure, there is, and will remain, a substantial minority of Americans who oppose SSM. But the reasons they do so--primarily, moral disapproval, biblical injunction, anxiety about homosexuality, and occasionally even animus--are unavailable to the states as legitimate justifications; and therefore it's understandable that those justifications--the actual grounds for state discrimination--do not even make an appearance in the Obergefell opinions. Here's a slightly amended version of the Obergefell portion of my Slate post: For more than a dozen years, in the scores of cases challenging marriage laws going back to https://scholar.google.com/scholar_case?case=16499869016395834644hl=enas_sdt=6as_vis=1oi=scholarr Goodridge and beyond, the briefing, arguments, and written decisions had been dominated by two questions: First, is discrimination on the basis of sexual orientation, like sex discrimination, subject to “heightened scrutiny” (in which case the denial of same-sex marriage would certainly be unconstitutional)? Second, if not--if rational basis review is applicable--what are the state interests supporting denial of same-sex marriage, and do they satisfy even the very deferential “rational-basis” test? Lawyers, judges, clerks and commentators expended thousands upon thousands of hours on these questions; if I had to guess, I’d say they consumed upward of 80 percent of the time, effort, and resources in the marriage cases over the years, including in Windsor and Hollingsworth two terms ago, and in Obergefell and its companion cases this year. The 90-plus pages of the Justices’ opinions in Obergefell don’t mention the first question (the proper standard of review for discrimination on the basis of sexual orientation) at all—not even to reserve it. That's a significant failing of the dissenting opinions, as I explain below. But it's not so surprising an omission in the majority opinion; I certainly didn't think Justice Kennedy would issue a ruling on the standard-of-review question, given that it was sufficient for him simply to hold that the marriage laws do not pass rational-basis muster (in conjunction with his substantive due process ruling). What is truly shocking, however, is that the various opinions barely even allude to the states’ asserted interests and whether they are sufficient to satisfy rational-basis review! Let's start with the majority opinion. Justice Kennedy announces the categorical, unequivocal holdings of the court on Pages 22–23 (emphasis mine): The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal
The Remarkable Disappearance of State Justifications in Obergefell
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. One of the most remarkable aspects of the Term, I argue there, is what the Court *didn't* do in *Obergefell http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf*--namely, devote much attention at all to the states' asserted justifications for excluding same-sex couples from the institution of civil marriage. That lacuna was no mere oversight--it was a function of the fact that the articulated justifications were threadbare, and that any legitimate justifications were virtually nonexistent. For that reason, I argue, the impassioned opinions of the dissenting Justices will have very little traction in the years to come--they elide the critical point--and the Court's judgment will, in short order, be very widely embraced as self-evidently correct. To be sure, there is, and will remain, a substantial minority of Americans who oppose SSM. But the reasons they do so--primarily, moral disapproval, biblical injunction, anxiety about homosexuality, and occasionally even animus--are unavailable to the states as legitimate justifications; and therefore it's understandable that those justifications--the *actual *grounds for state discrimination--do not even make an appearance in the *Obergefell* opinions. Here's a slightly amended version of the *Obergefell *portion of my *Slate * post: For more than a dozen years, in the scores of cases challenging marriage laws going back to *Goodridge https://scholar.google.com/scholar_case?case=16499869016395834644hl=enas_sdt=6as_vis=1oi=scholarr* and beyond, the briefing, arguments, and written decisions had been dominated by two questions: *First*, is discrimination on the basis of sexual orientation, like sex discrimination, subject to “heightened scrutiny” (in which case the denial of same-sex marriage would certainly be unconstitutional)? *Second*, if not--if rational basis review is applicable--what are the state interests supporting denial of same-sex marriage, and do they satisfy even the very deferential “rational-basis” test? Lawyers, judges, clerks and commentators expended thousands upon thousands of hours on these questions; if I had to guess, I’d say they consumed upward of 80 percent of the time, effort, and resources in the marriage cases over the years, including in *Windsor* and *Hollingsworth* two terms ago, and in *Obergefell* and its companion cases this year. The 90-plus pages of the Justices’ opinions in *Obergefell* don’t mention the first question (the proper standard of review for discrimination on the basis of sexual orientation) at all—not even to reserve it. That's a significant failing of the dissenting opinions, as I explain below. But it's not so surprising an omission in the majority opinion; I certainly didn't think Justice Kennedy would issue a ruling on the standard-of-review question, given that it was sufficient for him simply to hold that the marriage laws do not pass rational-basis muster (in conjunction with his substantive due process ruling). What *is *truly shocking, however, is that the various opinions barely even allude to the states’ asserted interests and whether they are sufficient to satisfy rational-basis review! Let's start with the majority opinion. Justice Kennedy announces the categorical, unequivocal holdings of the court on Pages 22–23 (emphasis mine): The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment *couples of the same-sex may not be deprived of that right and that liberty*. The Court now holds that*same-sex couples may exercise the fundamental right to marry*. No longer may this liberty be denied to them. *Baker v. Nelson* must be and now is overruled, and *the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples*. These holdings appear before the Court has said a single word about the four defendant states’ asserted justifications for refusing to recognize same-sex marriage. It is only *after *this passage that Justice Kennedy briefly addresses and unceremoniously rejects a couple of interests mentioned by the dissenting justices. From all that appears, however, the holdings of the Court do
Re: The Remarkable Disappearance of State Justifications in Obergefell
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
RE: The Remarkable Disappearance of State Justifications in Obergefell
Marty refers to religious justifications upon which the civil state cannot rely. I am OK with this language if it's understood narrowly, but it has the potential to do mischief. It should mean that (1) religious justifications cannot serve as the only basis for legislation (which I think happens very seldom), and (2) that religious justifications (like many other justifications) cannot have sufficient status (as a shared basic civil norm or a compelling interest) to override fundamental or important rights on the other side. Phrasing like Marty's above might--but should not--be read to encourage Establishment Clause challenges to laws where religious motivations and arguments play a significant role but there are other rationales too. Standards like was religion the prime motivator or rationale should be rejected, because they would wrongly place disabilities on religious views, and their proponents, in politics. Not only conservatives, but also liberals, have good reasons to oppose such a result. Micah Schwartzman and I go back and forth on clarifying this issue in his U. Chicago piece, What If Religion Is Not Special?, and my response. (Andy Koppelman weighs in too; and maybe others?) https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/79_4/03%20Schwartzman%20ART%20.pdf https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/Dialogue/Berg_Dialogue.pdf - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.eduhttps://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu SSRN: http://ssrn.com/author='261564https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Friday, July 03, 2015 11:32 AM To: Law Religion issues for Law Academics Cc: conlawp...@lists.ucla.edu Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell I agree with Doug that the majority gave short shrift to the state’s reasons because they viewed them as ridiculous and that the dissenters [mostly] didn’t talk about them because they didn’t really believe them, either. I also agree that at least three of the dissenters (not sure about the Chief) think that moral disapproval ought to be sufficient. But to the extent Scalia and Thomas However, to the extent Scalia and Thomas believed there was no right in the first place and [thus] nothing had to be justified, that'd be plainly mistaken, no? Surely the state is required to satisfy at least rational basis review if it discriminates in offering access to this extraordinarily important civil institution. On Fri, Jul 3, 2015 at 12:21 PM, Doug Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: I think the majority gave short shrift to the state’s reasons because they viewed them as ridiculous. I think the dissenters didn’t talk about them because 1) they didn’t really believe them either, and 2) they didn’t have to get that far because a) there was no right in the first place and nothing had to be justified, and b) if any justification were required, moral disapproval was enough. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, July 03, 2015 11:55 AM To: Law Religion issues for Law Academics Cc: conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu Subject: The Remarkable Disappearance of State Justifications in Obergefell 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 posthttp://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. One of the most remarkable aspects of the Term, I argue
Re: The Remarkable Disappearance of State Justifications in Obergefell
Isn't it also true that certainly Scalia as well as others have been reluctant to engage in balancing- as in the scout master case where no justice, as I recall, discussed the state's interest in non- discrimination? And Smith is in part premised on the danger in balancing. Marc Stern Sent from my iPhone On Jul 3, 2015, at 1:25 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: 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.edumailto: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.commailto: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 posthttp://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.edumailto: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 ATT1.c ___ 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.
Re: The Remarkable Disappearance of State Justifications in Obergefell
Is that a direct quote, Michael? Because that last sentence makes no sense. Judy Baer Sent from my iPhone On Jul 3, 2015, at 12:23 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: 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.edumailto: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.commailto: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 posthttp://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.edumailto: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 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ 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.
Please clearly identify the sender -- RE: The Remarkable Disappearance of State Justifications in Obergefell
Twice it has appeared that comments by others were mine. Please identify yourselves clearly when you send a post. For example, the post immediately below could be taken to be my response to a question that Eric asked me directly. In fact it was from Michael Worley. The “from” line doesn’t always make it easy to see who a post is from. Please append your name at the end of your post. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Michael Worley [mailto:mwor...@byulaw.net] Sent: Friday, July 03, 2015 11:15 AM To: Eric J Segall Cc: Scarberry, Mark; Law Religion issues for Law Academics; conlawp...@lists.ucla.edu Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell 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.edumailto: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.edumailto: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] Sent: Friday, July 03, 2015 10:33 AM To: Michael Worley; Scarberry, Mark Cc: Law Religion issues for Law Academics; conlawp...@lists.ucla.edumailto: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.edumailto:conlawprof-boun...@lists.ucla.edu conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu on behalf of Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net Sent: Friday, July 3, 2015 1:21 PM To: Scarberry, Mark Cc: Law Religion issues for Law Academics; conlawp...@lists.ucla.edumailto: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.edumailto: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
Re: The Remarkable Disappearance of State Justifications in Obergefell
Just to be clear: Tom is right. I was not making any point about whether and to what extent legislators (or voters) may or may not permissibly be motivated by religion in their decision-making, and certainly was not making a point about Establishment Clause limits. I was simply making the rather uncontroversial points (which Kennedy made in his opinion) (i) that many voters and legislators oppose SSM because of their understanding of the word of God, or because their religion has otherwise taught them that marriage should be reserved for a man and a woman, and (ii) that a state cannot invoke such religious reasons as a basis for justifying denial of the benefits of civil marriage to same-sex couples. On Fri, Jul 3, 2015 at 1:15 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: Marty refers to religious justifications upon which the civil state cannot rely. I am OK with this language if it's understood narrowly, but it has the potential to do mischief. It should mean that (1) religious justifications cannot serve as the only basis for legislation (which I think happens very seldom), and (2) that religious justifications (like many other justifications) cannot have sufficient status (as a shared basic civil norm or a compelling interest) to override fundamental or important rights on the other side. Phrasing like Marty's above might--but should not--be read to encourage Establishment Clause challenges to laws where religious motivations and arguments play a significant role but there are other rationales too. Standards like was religion the prime motivator or rationale should be rejected, because they would wrongly place disabilities on religious views, and their proponents, in politics. Not only conservatives, but also liberals, have good reasons to oppose such a result. Micah Schwartzman and I go back and forth on clarifying this issue in his U. Chicago piece, What If Religion Is Not Special?, and my response. (Andy Koppelman weighs in too; and maybe others?) https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/79_4/03%20Schwartzman%20ART%20.pdf https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/Dialogue/Berg_Dialogue.pdf - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu SSRN: http://ssrn.com/author='261564 https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564 Weblog: http://www.mirrorofjustice.blogs.com -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [ lederman.ma...@gmail.com] *Sent:* Friday, July 03, 2015 11:32 AM *To:* Law Religion issues for Law Academics *Cc:* conlawp...@lists.ucla.edu *Subject:* Re: The Remarkable Disappearance of State Justifications in Obergefell I agree with Doug that the majority gave short shrift to the state’s reasons because they viewed them as ridiculous and that the dissenters [mostly] didn’t talk about them because they didn’t really believe them, either. I also agree that at least three of the dissenters (not sure about the Chief) think that moral disapproval ought to be sufficient. But to the extent Scalia and Thomas However, to the extent Scalia and Thomas believed there was no right in the first place and [thus] nothing had to be justified, that'd be plainly mistaken, no? Surely the state is required to satisfy at least rational basis review if it discriminates in offering access to this extraordinarily important civil institution. On Fri, Jul 3, 2015 at 12:21 PM, Doug Laycock dlayc...@virginia.edu wrote: I think the majority gave short shrift to the state’s reasons because they viewed them as ridiculous. I think the dissenters didn’t talk about them because 1) they didn’t really believe them either, and 2) they didn’t have to get that far because a) there was no right in the first place and nothing had to be justified, and b) if any justification were required, moral disapproval was enough. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, July 03, 2015 11:55 AM *To:* Law Religion issues for Law Academics *Cc:* conlawp...@lists.ucla.edu *Subject:* The Remarkable Disappearance of State
Re: The Remarkable Disappearance of State Justifications in Obergefell
In this passage Roberts was not describing a state interest that might justify denial of marriage to same-sex couples. And I certainly hope he was not personally endorsing the notion that 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--or suggesting that any jurisdiction in the United States currently endorses that view! He was, instead, describing one reason why societies had historically established the institution of marriage between men and women--namely, to establish lasting bonds between those who have sexual relations that might lead to procreation. Justice Kennedy himself offers additional such historical reasons, such as to give families the power to control the fate of their children (with arranged marriages), and to support the institution of coverture. Societies establishing the institution of marriage for these reasons undoubtedly never even considered whether to extend the institution to same-sex couples--indeed, it's unlikely they often considered the existence of committed same-sex couples at all. But the question *today* is whether a state has a legitimate reason for *affirmatively excluding *same-sex couples from the *current *institution of marriage, which is rarely if ever based upon these historical foundations. And as to *that *question, the Chief understandably does not invoke these historical bases for marriage, which have little or nothing to do with the current institution or the state's support for it. Instead, he has but a single, inadequate response, which I quoted in my post--namely, tradition *qua * tradition. On Fri, Jul 3, 2015 at 1:21 PM, Michael Worley mwor...@byulaw.net wrote: 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
Re: The Remarkable Disappearance of State Justifications in Obergefell
Being Muslim (or Christian) has nothing to do with it, but the answer is yes, depending on which Muslims you are talking about. There is, of course, a long history of Muslim thought that recognizes what is natural (no need for the scare quotes with them). On Fri, Jul 3, 2015 at 3:00 PM, Malla Pollack mallapolla...@gmail.com wrote: Natural law is a figment of Christian imagination. Do you really think that Muslims think western natural law is natural? Malla On Fri, Jul 3, 2015 at 3:52 PM, Richard Dougherty dou...@udallas.edu wrote: Largely agree with this point, except for one major caveat -- natural law arguments are not religious arguments. That's what is natural about them. The collapse of the distinction between natural and religious is precisely what allows for the dismissal of natural law arguments as not applicable to the public realm of a secular society (whatever that phrase may mean or entail, a great source of contestation). Richard Dougherty On Fri, Jul 3, 2015 at 2:44 PM, Marc R Poirier marc.poir...@shu.edu wrote: Judy and all: You write: “Sexual relations that can lead to procreation should occur only between a man and a woman...uh, this pertains to same-sex couples how? ” I suspect the writer meant to write: “Sexual relations, which can lead to procreation, should occur only between a man and a woman.” That would make it a natural law argument, one that does not refer to God. It’s part of a millennia-long (probably inevitably recurring) notion that sex is basically polluting and is redeemed by various kinds of restrictions. One functional and redemptive justification for sexual activity is potential procreation. Not pleasure, not fostering a bond of companionship, not the release of important desires. As you well know, in the Judea-Christian tradition, non-procreative sex is problematic, and in one version of Christianity pleasure in sex is itself sinful. (Not so in traditional Judaism!) But of course to say all this openly brings religion and perhaps God back into the state’s justification. What happens instead is to make certain kinds of conclusions about sex statements of obvious fact and then claim rational basis. Warmly, Marc R. Poirier Professor of Law and Martha Traylor Research Scholar Seton Hall University School of Law One Newark Center Newark, NJ 07102-5210 973-642-8478 (work) 973-642-8546 (fax) 201-259-0896 (mobile) Selected articles and drafts available at http://ssrn.com/author=1268697 ___ 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.
Re: The Remarkable Disappearance of State Justifications in Obergefell
Actually, what we label natural law is a figment in the West of Greek imagination, since the arguments can be found in Plato and Aristotle, even if they were most fully developed by Thomas Aquinas. And, alas, Jewish and, I presume Islamic, law is thoroughly homophobic. None of this affects my support for Obergefell, but we should recognize this as a truly important moment in works culture, signaled far more significantly by the Irish referendum than by the vote of five American justices. Sandy Sent from my iPhone On Jul 3, 2015, at 4:03 PM, Malla Pollack mallapolla...@gmail.commailto:mallapolla...@gmail.com wrote: Natural law is a figment of Christian imagination. Do you really think that Muslims think western natural law is natural? Malla On Fri, Jul 3, 2015 at 3:52 PM, Richard Dougherty dou...@udallas.edumailto:dou...@udallas.edu wrote: Largely agree with this point, except for one major caveat -- natural law arguments are not religious arguments. That's what is natural about them. The collapse of the distinction between natural and religious is precisely what allows for the dismissal of natural law arguments as not applicable to the public realm of a secular society (whatever that phrase may mean or entail, a great source of contestation). Richard Dougherty On Fri, Jul 3, 2015 at 2:44 PM, Marc R Poirier marc.poir...@shu.edumailto:marc.poir...@shu.edu wrote: Judy and all: You write: Sexual relations that can lead to procreation should occur only between a man and a woman...uh, this pertains to same-sex couples how? I suspect the writer meant to write: Sexual relations, which can lead to procreation, should occur only between a man and a woman. That would make it a natural law argument, one that does not refer to God. It's part of a millennia-long (probably inevitably recurring) notion that sex is basically polluting and is redeemed by various kinds of restrictions. One functional and redemptive justification for sexual activity is potential procreation. Not pleasure, not fostering a bond of companionship, not the release of important desires. As you well know, in the Judea-Christian tradition, non-procreative sex is problematic, and in one version of Christianity pleasure in sex is itself sinful. (Not so in traditional Judaism!) But of course to say all this openly brings religion and perhaps God back into the state's justification. What happens instead is to make certain kinds of conclusions about sex statements of obvious fact and then claim rational basis. Warmly, Marc R. Poirier Professor of Law and Martha Traylor Research Scholar Seton Hall University School of Law One Newark Center Newark, NJ 07102-5210 973-642-8478tel:973-642-8478 (work) 973-642-8546tel:973-642-8546 (fax) 201-259-0896tel:201-259-0896 (mobile) Selected articles and drafts available at http://ssrn.com/author=1268697 Somebody has to plant the seed so that sanity can happen on this earth. -- Chogyam Trungpa, Rinpoche ___ To post, send message to conlawp...@lists.ucla.edumailto: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. -- Richard J. Dougherty, Ph.D. Chairman, Politics Department University of Dallas 1845 E. Northgate Drive Irving, TX 75062 972-721-5043tel:972-721-5043 ___ To post, send message to conlawp...@lists.ucla.edumailto: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. ___ To post, send message to conlawp...@lists.ucla.edumailto: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. ___ 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
Re: The Remarkable Disappearance of State Justifications in Obergefell
Sexual relations that can lead to procreation should occur only between a man and a woman...uh, this pertains to same-sex couples how? At any rate, it's extremely careless writing. Judy Sent from my iPhone On Jul 3, 2015, at 1:27 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: Yes. 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. And it does makes sense to people committed to a traditional sense of the role of sexuality in society. On Fri, Jul 3, 2015 at 12:19 PM, Baer, Judith A j-b...@pols.tamu.edumailto:j-b...@pols.tamu.edu wrote: Is that a direct quote, Michael? Because that last sentence makes no sense. Judy Baer Sent from my iPhone On Jul 3, 2015, at 12:23 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: 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.edumailto: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.commailto: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 posthttp://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.edumailto: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 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
FW: The Remarkable Disappearance of State Justifications in Obergefell, federal laws of the family
The post below is from Judith Resnik, who for some reason is able to read our musings but not able to reply. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: Resnik, Judith Sent: Friday, July 03, 2015 4:18 PM To: 'Doug Laycock'; 'Law Religion issues for Law Academics' Cc: conlawp...@lists.ucla.edu mailto:conlawp...@lists.ucla.edu Subject: RE: The Remarkable Disappearance of State Justifications in Obergefell, federal laws of the family I’m joining with Doug and wanted to add that, as many of us have detailed over the last decades, an essentialist approach to jurisdiction (family, women, children=state) was wrong as a matter of fact and that essentialist approaches to jurisdictional allocations were normatively misconceived. Of course the ready example is the master/servant argument and slavery, and the “domestic” realm is another one – painfully claimed in the VAWA case, Morrison, when Chief Justice Rehnquist held, 5-4 that Congress could not, at least as it had done in VAWA, reach violence against women, which was a “local” as compared to a “national” issue. The federal statutory laws of the family include ERISA, bankruptcy, social welfare benefits, Indian law, and immigration, inter alia. The constitutional laws of the family are reflected in Santosky, Troxel, and Loving, inter alia before this iteration. This categorical federalism approach is also at odds with the emerging international right to be free from household violence. The ECtHR found against Lithuania for failing to provide remedies for a woman hurt by her domestic partner. From: conlawprof-boun...@lists.ucla.edu mailto:conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Doug Laycock Sent: Friday, July 03, 2015 12:21 PM To: 'Law Religion issues for Law Academics' Cc: conlawp...@lists.ucla.edu mailto:conlawp...@lists.ucla.edu Subject: RE: The Remarkable Disappearance of State Justifications in Obergefell I think the majority gave short shrift to the state’s reasons because they viewed them as ridiculous. I think the dissenters didn’t talk about them because 1) they didn’t really believe them either, and 2) they didn’t have to get that far because a) there was no right in the first place and nothing had to be justified, and b) if any justification were required, moral disapproval was enough. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
Re: The Remarkable Disappearance of State Justifications in Obergefell
If a law is designed for opposite-sex relationships, the law has rationality. Over and over the rational basis text is described not as a tailoring test (where the state has to justify exclusion) but rather as a rationale test (where the defendant has to articulate that there is no differences between the two groups). *FCC Comm*. v. *Beach.* On Fri, Jul 3, 2015 at 1:19 PM, Baer, Judith A j-b...@pols.tamu.edu wrote: Sexual relations that can lead to procreation should occur only between a man and a woman...uh, this pertains to same-sex couples how? At any rate, it's extremely careless writing. Judy Sent from my iPhone On Jul 3, 2015, at 1:27 PM, Michael Worley mwor...@byulaw.net wrote: Yes. 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. And it does makes sense to people committed to a traditional sense of the role of sexuality in society. On Fri, Jul 3, 2015 at 12:19 PM, Baer, Judith A j-b...@pols.tamu.edu wrote: Is that a direct quote, Michael? Because that last sentence makes no sense. Judy Baer Sent from my iPhone On Jul 3, 2015, at 12:23 PM, Michael Worley mwor...@byulaw.net wrote: 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe
Re: FW: The Remarkable Disappearance of State Justifications in Obergefell
In his second point, Earl is re-arguing some of the rationales that states have, in fact, invoked in the marriage cases over the past dozen or more years. I don't want to rehash the merits of those arguments, having spent countless hours in and out of government for many years contending with them. Indeed, the principal point of my post was not to reopen the merits of these debates --which we've been over on these listservs countless times over the years, too -- but instead to note how shocking it is that the Court's opinions do *not *rehearse those arguments in any detail because it had become evident to all involved (including the Justices) that the arguments are in fact far removed from the *actual *reasons that modern states promote the institution of civil marriage and why many such states have decided to exclude same-sex couples from that institution. (Or so I argue, in any event.) I'll address Earl's first point in a separate post, because it deserves its own attention. On Fri, Jul 3, 2015 at 2:24 PM, Earl Maltz ema...@camden.rutgers.edu wrote: *From:* Earl Maltz *Subject:* RE: The Remarkable Disappearance of State Justifications in Obergefell It is only with the greatest reluctance that I enter this discussion. However, there are a couple of implications that I cannot in good conscience allow to pass. Preliminarily, I would like to comment on the notion that Kennedy actually showed respect to those who do not believe that the state give the legal status of marriage to same-sex unions. In fact, as Chief Justice Roberts noted, after making a big show of saying he respected those who disagreed with him, Kennedy essentially branded them as bigots. The language on p. 19 cannot be understood in any other way. More importantly, the suggestion that there is no rational reason for limiting the legal status of marriage to opposite sex unions (as opposed to the kumbaya version discussed by Kennedy) is simply wrong as a matter of fact. First, we should be clear about what was at stake in Obergefell. Prior to the decision, states were allowed to simply be neutral on the status of same sex unions. Unlike polygamous unions, same sex couples were allowed to announce that they were married and asked people to treat them as a married couple. By contrast, Obergefell requires states to affirmatively endorse same sex unions. Second, as Alito comes very close to stating, one of the main incidents of the status of marriage is the creation of the presumption of paternity in the husband, which in turn carries with it responsibilities toward the child and rights with respect to him—a presumption embodied in every statutory scheme defining marital rights and responsibilities. In other words, marriage creates a framework that allows men and women to have sexual relations with one and other and to have the status of any offspring determined ex ante. It is certainly rational for the state to take the position that, in the absence of such an interest, it should not take either side on a moral issue on which its populace is deeply divided. BTW, the idea that states should be required to conduct fertility tests in order to assert this interest with respect to opposite sex couples is absurd on its face. _ ___ 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.
