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.
