In my view, the answer to Bob’s questions is “no.” Marriage applicants could not be required to make such certifications. The constitutional right to marry is firmly established in our history and traditions, and its content as firmly established does not permit such a certification to be required.
As I’ve suggested before, I don’t think the same is true of a requirement that the couple express a commitment to sexual fidelity/exclusivity within the marriage; our history and traditions would seem to support a state in requiring a certification of that intent. And I think that, at the appropriate level of specificity (a matter subject to dispute, of course), our history and traditions do not require recognition of the right to same-sex marriage. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: b...@jmcenter.org [mailto: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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
