Again, if the question is whether there is a rational basis for
the requirement – the question that we began with, since the presence or
absence of a rational basis for certain marriage recognition rules is what
Kennedy and Alito were debating – then the answer is “yes”; there is indeed a
rational basis for such a requirement. If the question is whether the
requirement would violate a constitutional right to marry that the Court has
recognized, then the answer would be “no,” but that’s because restrictions on
that right require more than a rational basis.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Wednesday, July 10, 2013 8:35 PM
To: Scarberry, Mark; Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent
Could the procreation argument carried to the extreme result in a requirement
that the marriage applicants be required to certify under oath that they intend
to have children (biologically) and that to the best of their knowledge they
are capable of having children? And that if either answer is checked "no", then
a license is not issued?
Bob Ritter
On July 4, 2013 at 1:13 AM "Scarberry, Mark"
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:
Last night in Maui, before heading back to Malibu (actually we live in Thousand
Oaks, not on the ocean, but who's complaining), so a full response will have to
wait, but my point was that if there is an institution designed to channel /
encourage / honor committed relationships that are likely to produce children
naturally, then it would be rational or reasonable not to exclude different-sex
couples due to age or physical condition. This answers the "why don't you
exclude those couples" argument.
MARK SCARBERRY
Sent from my Verizon Wireless 4G LTE Smartphone
-------- Original message --------
From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
Date: 07/03/2013 5:20 PM (GMT-10:00)
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Marriage -- the Alito dissent
That may be a perfectly sensible policy position; but I don’t
think that modern constitutional law demands that the government take such a
view. To be sure, the government is constrained in its power to restrict
childbearing or to mandate it, but the government can certainly distribute
benefits with an eye towards encouraging or discouraging procreation.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
Sent: Wednesday, July 03, 2013 7:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent
This is going to sound awfully libertarian of me, but it's none of the state's
business whether a couple has children or not, regardless of age. Rather it is
my understanding that the care and treatment of children resulting from a given
union (by whatever means) are appropriate state interests.
(Not only was Abraham not a model parent, but also reads as an extortionist and
pimp.)
________________________________
From: "Sanford V Levinson"
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>>
To: "Mark Scarberry"
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>>, "Law &
Religion issues for Law Academics"
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, July 3, 2013 9:49:40 PM
Subject: RE: Marriage -- the Alito dissent
I realize that my following question gets into another hot-button area, but is
Mark suggesting that there is a strong constitutional interest in procreation
at any age? Why can’t the state come to the altogether rational conclusion
that it is really unwise for, say, a 55-year-old couple to have children unless
the couple has enough resources to cover the costs of taking care of children
even after their retirement (not to mention covering the costs of likely
medical care)? I agree that is probably not a compelling state interest, at
least in a quasi-libertarian society, but I certainly think it is at least a
rational, say, as the defenses being asserted for DOMA. Of course it may be
that medical advances in the future will make Sarah and Abraham models to
emulate, though I tend to be skeptical. In any event, Abraham was a dreadful
father who proved willing to kill his child because of a totally arbitrary
command to do so. (It is irrelevant that, at least according to the Bible, God
sent the innocent lamb to be sacrificed instead There are Midrash,
incidentally, that suggest that no lamb appeared, which explains why only
Abraham climbed down the mountain and Isaac was not heard from again for three
years, by which time Sarah was dead. One can only imagine the conversation
that ensued when Abraham came back to the tent without Isaac and had to explain
why he was alone. He’s lucky that she didn’t kill him then and there. But I
digress….)
sandy
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, July 03, 2013 8:12 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Marriage -- the Alito dissent
The biological issues with regard to different sex couples mostly can be
answered fairly easily, I think, including with these points:
With regard to medical or similar issues that prevent procreation, a state
inquiry would intrude substantially on privacy, which would justify the state
in not inquiring. (Also, some couples who have given up on conceiving, later
are surprised to find that they have.)
With regard to age, no bright line can be set that accurately distinguishes
those who can from those who cannot procreate. Any line based on experience as
to an age after which procreation cannot occur would either be impossible to
set - men can procreate to a very old age - or would have to discriminate
against women, who lose the ability to become pregnant by a particular upper
bound (absent miracles as with Sarah and Abraham) that is much younger than any
age that could possibly be set for men. Thus there are good reasons not to set
an age limit.
Mark Scarberry
Sent from my Verizon Wireless 4G LTE Smartphone
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