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
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