It’s been a while since this thread petered out, so I’d rather not burden list members with more on this unless there’s really a good deal of interest in reviving it. But in an earlier post I tried to offer two basis for limiting marriage to opposite-sex couples that should, I think, pass the rational basis test, http://lists.ucla.edu/pipermail/religionlaw/2013-July/026509.html. They may not persuade many people on the merits – they don’t persuade me – but I think they are plausible enough to pass the rational basis threshold. (As to the constitutional right to marry, given that the premise for recognizing such a right has been longstanding American tradition, the question is whether such a sharp departure from tradition would be covered by this tradition-based right.)
Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Sunday, July 21, 2013 8:40 PM To: Law & Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Eugene, I'm sorry, but I don't understand your comment below. I am aware of excuses but not a rational basis for limiting marriage to opposite-sex couples. Nor am I aware of how DOMA doesn't violate the constitutional right marry based on Loving v. Virginia and Lawrence v. Texas. The real problem, in my opinion, is that while equality is a core American principle, in practice many Americans (including 4 justices) are not committed to it. Bob Ritter On July 10, 2013 at 11:42 PM "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: 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> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 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.
