subject:"The Remarkable Disappearance of State Justifications in Obergefell"

The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Marty Lederman

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.

One of the most remarkable aspects of the Term, I argue there, is what the
Court *didn't* do in *Obergefell
<http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf>*--namely,
devote much attention at all to the states' asserted justifications for
excluding same-sex couples from the institution of civil marriage.  That
lacuna was no mere oversight--it was a function of the fact that the
articulated justifications were threadbare, and that any legitimate
justifications were virtually nonexistent.  For that reason, I argue, the
impassioned opinions of the dissenting Justices will have very little
traction in the years to come--they elide the critical point--and the
Court's judgment will, in short order, be very widely embraced as
self-evidently correct.  To be sure, there is, and will remain, a
substantial minority of Americans who oppose SSM.  But the reasons they do
so--primarily, moral disapproval, biblical injunction, anxiety about
homosexuality, and occasionally even animus--are unavailable to the states
as legitimate justifications; and therefore it's understandable that those
justifications--the *actual *grounds for state discrimination--do not
even make an appearance in the *Obergefell* opinions.

Here's a slightly amended version of the *Obergefell *portion of my *Slate *
post:

For more than a dozen years, in the scores of cases challenging marriage
laws going back to *Goodridge
<https://scholar.google.com/scholar_case?case=16499869016395834644&hl=en&as_sdt=6&as_vis=1&oi=scholarr>*
and
beyond, the briefing, arguments, and written decisions had been dominated
by two questions:  *First*, is discrimination on the basis of sexual
orientation, like sex discrimination, subject to “heightened scrutiny” (in
which case the denial of same-sex marriage would certainly be
unconstitutional)?  *Second*, if not--if "rational basis" review is
applicable--what are the state interests supporting denial of same-sex
marriage, and do they satisfy even the very deferential “rational-basis”
test?

Lawyers, judges, clerks and commentators expended thousands upon thousands
of hours on these questions; if I had to guess, I’d say they consumed
upward of 80 percent of the time, effort, and resources in the marriage
cases over the years, including in *Windsor* and *Hollingsworth* two terms
ago, and in *Obergefell* and its companion cases this year.

The 90-plus pages of the Justices’ opinions in *Obergefell* don’t mention
the first question (the proper standard of review for discrimination on the
basis of sexual orientation) at all—not even to reserve it.  That's a
significant failing of the dissenting opinions, as I explain below.  But
it's not so surprising an omission in the majority opinion; I certainly
didn't think Justice Kennedy would issue a ruling on the standard-of-review
question, given that it was sufficient for him simply to hold that the
marriage laws do not pass rational-basis muster (in conjunction with his
substantive due process ruling).

What *is *truly shocking, however, is that the various opinions barely even
allude to the states’ asserted interests and whether they are sufficient to
satisfy rational-basis review!

Let's start with the majority opinion.  Justice Kennedy announces the
categorical, unequivocal holdings of the court on Pages 22–23 (emphasis
mine):

The right to marry is a fundamental right inherent in the liberty of the
person, and under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment *couples of the same-sex may not be deprived of that
right and that liberty*.  The Court now holds that*same-sex couples may
exercise the fundamental right to marry*.  No longer may this liberty be
denied to them.  *Baker v. Nelson* must be and now is overruled, and *the
State laws challenged by Petitioners in these cases are now held invalid to
the extent they exclude same-sex couples from civil marriage on the same
terms and conditions as opposite-sex couples*.

These holdings appear before the Court has said a single word about the
four defendant states’ asserted justifications for refusing to recognize
same-sex marriage.  It is only *after *this passage that Justice Kennedy
briefly addresses and unceremoniously rejects a couple of i

RE: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Doug Laycock

I think the majority gave short shrift to the state’s reasons because they 
viewed them as ridiculous. I think the dissenters didn’t talk about them 
because 1) they didn’t really believe them either, and 2) they didn’t have to 
get that far because a) there was no right in the first place and nothing had 
to be justified, and b) if any justification were required, moral disapproval 
was enough. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, July 03, 2015 11:55 AM
To: Law & Religion issues for Law Academics
Cc: conlawp...@lists.ucla.edu
Subject: The Remarkable Disappearance of State Justifications in Obergefell

 

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  
<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>
 post 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.

One of the most remarkable aspects of the Term, I argue there, is what the 
Court didn't do in  
<http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf> 
Obergefell--namely, devote much attention at all to the states' asserted 
justifications for excluding same-sex couples from the institution of civil 
marriage.  That lacuna was no mere oversight--it was a function of the fact 
that the articulated justifications were threadbare, and that any legitimate 
justifications were virtually nonexistent.  For that reason, I argue, the 
impassioned opinions of the dissenting Justices will have very little traction 
in the years to come--they elide the critical point--and the Court's judgment 
will, in short order, be very widely embraced as self-evidently correct.  To be 
sure, there is, and will remain, a substantial minority of Americans who oppose 
SSM.  But the reasons they do so--primarily, moral disapproval, biblical 
injunction, anxiety about homosexuality, and occasionally even animus--are 
unavailable to the states as legitimate justifications; and therefore it's 
understandable that those justifications--the actual grounds for state 
discrimination--do not even make an appearance in the Obergefell opinions.

Here's a slightly amended version of the Obergefell portion of my Slate post:

For more than a dozen years, in the scores of cases challenging marriage laws 
going back to  
<https://scholar.google.com/scholar_case?case=16499869016395834644&hl=en&as_sdt=6&as_vis=1&oi=scholarr>
 Goodridge and beyond, the briefing, arguments, and written decisions had been 
dominated by two questions:  First, is discrimination on the basis of sexual 
orientation, like sex discrimination, subject to “heightened scrutiny” (in 
which case the denial of same-sex marriage would certainly be 
unconstitutional)?  Second, if not--if "rational basis" review is 
applicable--what are the state interests supporting denial of same-sex 
marriage, and do they satisfy even the very deferential “rational-basis” test?

Lawyers, judges, clerks and commentators expended thousands upon thousands of 
hours on these questions; if I had to guess, I’d say they consumed upward of 80 
percent of the time, effort, and resources in the marriage cases over the 
years, including in Windsor and Hollingsworth two terms ago, and in Obergefell 
and its companion cases this year.

The 90-plus pages of the Justices’ opinions in Obergefell don’t mention the 
first question (the proper standard of review for discrimination on the basis 
of sexual orientation) at all—not even to reserve it.  That's a significant 
failing of the dissenting opinions, as I explain below.  But it's not so 
surprising an omission in the majority opinion; I certainly didn't think 
Justice Kennedy would issue a ruling on the standard-of-review question, given 
that it was sufficient for him simply to hold that the marriage laws do not 
pass rational-basis muster (in conjunction with his substantive due process 
ruling). 

What is truly shocking, however, is that the various opinions barely even 
allude to the states’ asserted interests and whether they are sufficient to 
satisfy rational-basis review!

Let's start with the majority opinion.  Justice Kennedy announces the 
categorical, unequivocal holdings of the court on Pages 22–23 (emphasis mine):

The righ

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Scarberry, Mark

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" 
mailto: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 Religionlaw@lists.ucla.edu
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Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Marty Lederman

As even the Chief Justice acknowledges, that is *not* "all that needs to be
said."  Whatever one's views of the proper scope of substantive due
process, excluding LGBT individuals from the institution of marriage is
unconstitutional unless there is, at a minimum, a legitimate and reasonable
state interest in support of such an exclusion.  And here, the states and
the dissenters can't --and don't -- invoke any such justification.  The
thrust of my argument is that the reason they don't do so is that everyone
knows the *real *reasons for the exclusion -- and for the recent state
constitutional amendments, in particular -- are, post-*Lawrence*,
inadmissible.  But if so, that leaves them with nothing.

On Fri, Jul 3, 2015 at 12:22 PM, 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" 
> 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 Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Marty Lederman

I agree with Doug that "the majority gave short shrift to the state’s
reasons because they viewed them as ridiculous" and that "the dissenters
[mostly] didn’t talk about them because they didn’t really believe them,
either."  I also agree that at least three of the dissenters (not sure
about the Chief) think that moral disapproval ought to be sufficient.  But
to the extent Scalia and Thomas

However, to the extent Scalia and Thomas believed "there was no right in
the first place and [thus] nothing had to be justified," that'd be plainly
mistaken, no?  Surely the state is required to satisfy at least rational
basis review if it discriminates in offering access to this extraordinarily
important civil institution.

On Fri, Jul 3, 2015 at 12:21 PM, Doug Laycock  wrote:

> I think the majority gave short shrift to the state’s reasons because they
> viewed them as ridiculous. I think the dissenters didn’t talk about them
> because 1) they didn’t really believe them either, and 2) they didn’t have
> to get that far because a) there was no right in the first place and
> nothing had to be justified, and b) if any justification were required,
> moral disapproval was enough.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Friday, July 03, 2015 11:55 AM
> *To:* Law & Religion issues for Law Academics
> *Cc:* conlawp...@lists.ucla.edu
> *Subject:* The Remarkable Disappearance of State Justifications in
> Obergefell
>
>
>
> 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.
>
> One of the most remarkable aspects of the Term, I argue there, is what the
> Court *didn't* do in *Obergefell
> <http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf>*--namely,
> devote much attention at all to the states' asserted justifications for
> excluding same-sex couples from the institution of civil marriage.  That
> lacuna was no mere oversight--it was a function of the fact that the
> articulated justifications were threadbare, and that any legitimate
> justifications were virtually nonexistent.  For that reason, I argue, the
> impassioned opinions of the dissenting Justices will have very little
> traction in the years to come--they elide the critical point--and the
> Court's judgment will, in short order, be very widely embraced as
> self-evidently correct.  To be sure, there is, and will remain, a
> substantial minority of Americans who oppose SSM.  But the reasons they do
> so--primarily, moral disapproval, biblical injunction, anxiety about
> homosexuality, and occasionally even animus--are unavailable to the states
> as legitimate justifications; and therefore it's understandable that those
> justifications--the *actual *grounds for state discrimination--do not
> even make an appearance in the *Obergefell* opinions.
>
> Here's a slightly amended version of the *Obergefell *portion of my
> *Slate *post:
>
> For more than a dozen years, in the scores of cases challenging marriage
> laws going back to *Goodridge
> <https://scholar.google.com/scholar_case?case=16499869016395834644&hl=en&as_sdt=6&as_vis=1&oi=scholarr>*
>  and
> beyond, the briefing, arguments, and written decisions had been dominated
> by two questions:  *First*, is discrimination on the basis of sexual
> orientation, like sex discrimination, subject to “heightened scrutiny” (in
> which case the denial of same-sex marriage would certainly be
> unconstitutional)?  *Second*, if not--if "rational basis" review is
> applicable--what are the state interests supporting denial of same-sex
> marriage, and do they satisfy even the very deferential “rational-basis”
> test?
>
> Lawyers, judges, clerks and commentators expended thousands upon thousands
> of hours on these questio

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Marty Lederman

Even so, it's noteworthy, isn't it, that Scalia and Thomas were unwilling
to repeat the view that moral condemnation is sufficient -- an argument
that might have had some traction with their intended audiences nine years
ago, in *Lawrence*, but that today apparently is so far beyond the pale
that it can't be uttered in a Supreme Court opinion, even by Justices who
are willing to say plenty of other outrageous things.

On Fri, Jul 3, 2015 at 12:32 PM, Marty Lederman 
wrote:

> I agree with Doug that "the majority gave short shrift to the state’s
> reasons because they viewed them as ridiculous" and that "the dissenters
> [mostly] didn’t talk about them because they didn’t really believe them,
> either."  I also agree that at least three of the dissenters (not sure
> about the Chief) think that moral disapproval ought to be sufficient.  But
> to the extent Scalia and Thomas
>
> However, to the extent Scalia and Thomas believed "there was no right in
> the first place and [thus] nothing had to be justified," that'd be
> plainly mistaken, no?  Surely the state is required to satisfy at least
> rational basis review if it discriminates in offering access to this
> extraordinarily important civil institution.
>
> On Fri, Jul 3, 2015 at 12:21 PM, Doug Laycock 
> wrote:
>
>> I think the majority gave short shrift to the state’s reasons because
>> they viewed them as ridiculous. I think the dissenters didn’t talk about
>> them because 1) they didn’t really believe them either, and 2) they didn’t
>> have to get that far because a) there was no right in the first place and
>> nothing had to be justified, and b) if any justification were required,
>> moral disapproval was enough.
>>
>>
>>
>> Douglas Laycock
>>
>> Robert E. Scott Distinguished Professor of Law
>>
>> University of Virginia Law School
>>
>> 580 Massie Road
>>
>> Charlottesville, VA  22903
>>
>>  434-243-8546
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>> *Sent:* Friday, July 03, 2015 11:55 AM
>> *To:* Law & Religion issues for Law Academics
>> *Cc:* conlawp...@lists.ucla.edu
>> *Subject:* The Remarkable Disappearance of State Justifications in
>> Obergefell
>>
>>
>>
>> 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.
>>
>> One of the most remarkable aspects of the Term, I argue there, is what
>> the Court *didn't* do in *Obergefell
>> <http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf>*--namely,
>> devote much attention at all to the states' asserted justifications for
>> excluding same-sex couples from the institution of civil marriage.  That
>> lacuna was no mere oversight--it was a function of the fact that the
>> articulated justifications were threadbare, and that any legitimate
>> justifications were virtually nonexistent.  For that reason, I argue, the
>> impassioned opinions of the dissenting Justices will have very little
>> traction in the years to come--they elide the critical point--and the
>> Court's judgment will, in short order, be very widely embraced as
>> self-evidently correct.  To be sure, there is, and will remain, a
>> substantial minority of Americans who oppose SSM.  But the reasons they do
>> so--primarily, moral disapproval, biblical injunction, anxiety about
>> homosexuality, and occasionally even animus--are unavailable to the states
>> as legitimate justifications; and therefore it's understandable that those
>> justifications--the *actual *grounds for state discrimination--do not
>> even make an appearance in the *Obergefell* opinions.
>>
>> Here's a slightly amended version of the *Obergefell *portion of my
>> *Slate *post:
>>
>> For more than a dozen years, in the sc

RE: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Berg, Thomas C.

Marty refers to "religious justifications upon which the civil state cannot 
rely." I am OK with this language if it's understood narrowly, but it has the 
potential to do mischief. It should mean that (1) religious justifications 
cannot serve as the only basis for legislation (which I think happens very 
seldom), and (2) that religious justifications (like many other justifications) 
cannot have sufficient status (as a shared basic civil norm or a compelling 
interest) to override fundamental or important rights on the other side.

Phrasing like Marty's above might--but should not--be read to encourage 
Establishment Clause challenges to laws where religious motivations and 
arguments play a significant role but there are other rationales too. Standards 
like "was religion the prime motivator or rationale" should be rejected, 
because they would wrongly place disabilities on religious views, and their 
proponents, in politics. Not only conservatives, but also liberals, have good 
reasons to oppose such a result.

Micah Schwartzman and I go back and forth on clarifying this issue in his U. 
Chicago piece, "What If Religion Is Not Special?," and my response. (Andy 
Koppelman weighs in too; and maybe others?)
https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/79_4/03%20Schwartzman%20ART%20.pdf
https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/Dialogue/Berg_Dialogue.pdf

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=mailto%3atcberg%40stthomas.edu>
SSRN: 
http://ssrn.com/author='261564<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564>
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Friday, July 03, 2015 11:32 AM
To: Law & Religion issues for Law Academics
Cc: conlawp...@lists.ucla.edu
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell

I agree with Doug that "the majority gave short shrift to the state’s reasons 
because they viewed them as ridiculous" and that "the dissenters [mostly] 
didn’t talk about them because they didn’t really believe them, either."  I 
also agree that at least three of the dissenters (not sure about the Chief) 
think that moral disapproval ought to be sufficient.  But to the extent Scalia 
and Thomas

However, to the extent Scalia and Thomas believed "there was no right in the 
first place and [thus] nothing had to be justified," that'd be plainly 
mistaken, no?  Surely the state is required to satisfy at least rational basis 
review if it discriminates in offering access to this extraordinarily important 
civil institution.

On Fri, Jul 3, 2015 at 12:21 PM, Doug Laycock 
mailto:dlayc...@virginia.edu>> wrote:
I think the majority gave short shrift to the state’s reasons because they 
viewed them as ridiculous. I think the dissenters didn’t talk about them 
because 1) they didn’t really believe them either, and 2) they didn’t have to 
get that far because a) there was no right in the first place and nothing had 
to be justified, and b) if any justification were required, moral disapproval 
was enough.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Marty Lederman
Sent: Friday, July 03, 2015 11:55 AM
To: Law & Religion issues for Law Academics
Cc: conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: The Remarkable Disappearance of State Justifications in Obergefell

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

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Michael Worley

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" 
> 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 
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Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Michael Worley

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  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" 
>> 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
&g

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Marc Stern

Isn't it also true that certainly Scalia as well as others have been reluctant 
to engage in balancing- as in the scout master case where no justice, as I 
recall, discussed the state's interest in non- discrimination? And Smith is in 
part premised on the danger  in balancing.

Marc Stern


Sent from my iPhone

On Jul 3, 2015, at 1:25 PM, Michael Worley 
mailto:mwor...@byulaw.net>> wrote:

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 
mailto: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" 
mailto: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<mailto: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.

RE: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Scarberry, Mark

I have to say one last thing before excusing myself from this discussion.

Justice Roberts's explanation of the institution of marriage leads to  clearly 
rational basis for not expanding it to include same sex couples. Expanding it 
may affect or dilute the social meaning of the institution and reduce its 
effectiveness in accomplishing the goals described by the Chief. We don't know 
whether that will happen, and we never will know, because the variables can't 
be controlled. That's enough to provide a rational basis.

With regard to whether it is rational to limit the institution to a union 
between a man and a woman, but to limit it in various other ways: There are 
many reasons why it would be rational not to limit the institution in those 
other ways. An inquiry into whether the man and woman are able to have children 
would be intrusive (and sometimes would yield the wrong answer). Ditto for an 
inquiry into whether they plan to have children, an inquiry that would be very 
inaccurate in determining whether the couple really will have children. There 
is no age line that can be drawn that accurately divides women who can bear 
children naturally from those who cannot, and there is no age, as far as I 
know, beyond which a man cannot naturally father a child. In any case, it is 
rational not to set different ages for men and for women. To the extent that 
the institution is designed to keep natural parents together as they raise 
children, any age limit would rationally be extended by 17 years or more.

Signing off for now.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law




From: Eric J Segall [mailto:eseg...@gsu.edu]
Sent: Friday, July 03, 2015 10:33 AM
To: Michael Worley; Scarberry, Mark
Cc: Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell


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  on 
behalf of Michael Worley 
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 
mailto: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" 
mailto: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 "

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Michael Worley

I don't have to; I was saying that was the state's argument; therefore,
Marty is incorrect in saying that the dissenters didn't mention the state's
arguments.

On Fri, Jul 3, 2015 at 12:03 PM, Eric J Segall  wrote:

>  You are saying the SSM bans enacted in the last 20 years were about
> procreation?
>
>  Eric
>
> Sent from my iPhone
>
> On Jul 3, 2015, at 1:54 PM, "Scarberry, Mark" <
> mark.scarbe...@pepperdine.edu> wrote:
>
>   I have to say one last thing before excusing myself from this
> discussion.
>
>
>
> Justice Roberts’s explanation of the institution of marriage leads to
>  clearly rational basis for not expanding it to include same sex couples.
> Expanding it may affect or dilute the social meaning of the institution and
> reduce its effectiveness in accomplishing the goals described by the Chief.
> We don’t know whether that will happen, and we never will know, because the
> variables can’t be controlled. That’s enough to provide a rational basis.
>
>
>
> With regard to whether it is rational to limit the institution to a union
> between a man and a woman, but to limit it in various other ways: There are
> many reasons why it would be rational not to limit the institution in those
> other ways. An inquiry into whether the man and woman are able to have
> children would be intrusive (and sometimes would yield the wrong answer).
> Ditto for an inquiry into whether they plan to have children, an inquiry
> that would be very inaccurate in determining whether the couple really will
> have children. There is no age line that can be drawn that accurately
> divides women who can bear children naturally from those who cannot, and
> there is no age, as far as I know, beyond which a man cannot naturally
> father a child. In any case, it is rational not to set different ages for
> men and for women. To the extent that the institution is designed to keep
> natural parents together as they raise children, any age limit would
> rationally be extended by 17 years or more.
>
>
>
> Signing off for now.
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
>
>
> *From:* Eric J Segall [mailto:eseg...@gsu.edu ]
> *Sent:* Friday, July 03, 2015 10:33 AM
> *To:* Michael Worley; Scarberry, Mark
> *Cc:* Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu
> *Subject:* Re: The Remarkable Disappearance of State Justifications in
> Obergefell
>
>
>
> 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

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Baer, Judith A

Is that a direct quote, Michael? Because that last sentence makes no sense.
Judy Baer

Sent from my iPhone

On Jul 3, 2015, at 12:23 PM, Michael Worley
mailto:mwor...@byulaw.net>> wrote:

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
mailto: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"
mailto: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<mailto:conlawp...@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

--
Michael Worley
J.D., Brigham Young University
___
To post, send message to
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see
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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

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Michael Worley

Yes.

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.

And it does makes sense to people committed to a traditional sense of the
role of sexuality in society.

On Fri, Jul 3, 2015 at 12:19 PM, Baer, Judith A 
wrote:

>   Is that a direct quote, Michael? Because that last sentence makes no
> sense.
> Judy Baer
>
> Sent from my iPhone
>
> On Jul 3, 2015, at 12:23 PM, Michael Worley  wrote:
>
>   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" 
>> 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/mailma

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Baer, Judith A

Sexual relations that can lead to procreation should occur only between a man
and a woman...uh, this pertains to same-sex couples how?
At any rate, it's extremely careless writing.
Judy

Sent from my iPhone

On Jul 3, 2015, at 1:27 PM, Michael Worley
mailto:mwor...@byulaw.net>> wrote:

Yes.

And it does makes sense to people committed to a traditional sense of the role
of sexuality in society.

On Fri, Jul 3, 2015 at 12:19 PM, Baer, Judith A
mailto:j-b...@pols.tamu.edu>> wrote:
Is that a direct quote, Michael? Because that last sentence makes no sense.
Judy Baer

Sent from my iPhone

On Jul 3, 2015, at 12:23 PM, Michael Worley
mailto:mwor...@byulaw.net>> wrote:

My understanding is Roberts did articulate the state's procreation argument:

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"
mailto: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

[snip]

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;

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Michael Worley

If a law is designed for opposite-sex relationships, the law has
rationality.  Over and over the rational basis text is described not as a
tailoring test (where the state has to justify exclusion) but rather as a
rationale test (where the defendant has to articulate that there is no
differences between the two groups). *FCC Comm*. v. *Beach.*

On Fri, Jul 3, 2015 at 1:19 PM, Baer, Judith A  wrote:

>  Sexual relations that can lead to procreation should occur only between
> a man and a woman...uh, this pertains to same-sex couples how?
> At any rate, it's extremely careless writing.
> Judy
>
> Sent from my iPhone
>
> On Jul 3, 2015, at 1:27 PM, Michael Worley  wrote:
>
>   Yes.
>
>   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.
>
> And it does makes sense to people committed to a traditional sense of the
> role of sexuality in society.
>
> On Fri, Jul 3, 2015 at 12:19 PM, Baer, Judith A 
> wrote:
>
>>   Is that a direct quote, Michael? Because that last sentence makes no
>> sense.
>> Judy Baer
>>
>> Sent from my iPhone
>>
>> On Jul 3, 2015, at 12:23 PM, Michael Worley  wrote:
>>
>>   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" 
>>> 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 hand

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Richard Dougherty

Largely agree with this point, except for one major caveat -- natural law
arguments are not religious arguments.  That's what is natural about them.
The collapse of the distinction between natural and religious is precisely
what allows for the dismissal of natural law arguments as not applicable to
the public realm of a secular society (whatever that phrase may mean or
entail, a great source of contestation).

Richard Dougherty

On Fri, Jul 3, 2015 at 2:44 PM, Marc R Poirier  wrote:

>
>
>
>
> Judy and all:
>
>
>
> You write: “Sexual relations that can lead to procreation should occur
> only between a man and a woman...uh, this pertains to same-sex couples how?
> ”
>
>
>
> I suspect the writer meant to write: “Sexual relations, which can lead to
> procreation, should occur only between a man and a woman.”  That would make
> it a natural law argument, one that does not refer to God.  It’s part of a
> millennia-long (probably inevitably recurring) notion that sex is basically
> polluting and is redeemed by various kinds of restrictions.  One functional
> and redemptive justification for sexual activity is potential procreation.
> Not pleasure, not fostering a bond of companionship, not the release of
> important desires.  As you well know, in the Judea-Christian tradition,
> non-procreative sex is problematic, and in one version of Christianity
> pleasure in sex is itself sinful.  (Not so in traditional Judaism!)
>
>
>
> But of course to say all this openly brings religion and perhaps God back
> into the state’s justification.  What happens instead is to make certain
> kinds of conclusions about sex statements of obvious fact and then claim
> rational basis.
>
>
>
> Warmly,
>
>
>
>
>
> Marc R. Poirier
>
> Professor of Law and Martha Traylor Research Scholar
>
> Seton Hall University School of Law
>
> One Newark Center
>
> Newark, NJ 07102-5210
>
> 973-642-8478 (work)
>
> 973-642-8546 (fax)
>
> 201-259-0896 (mobile)
>
> Selected articles and drafts available at http://ssrn.com/author=1268697
>
>
>
> Somebody has to plant the seed so that sanity can happen on this earth. --
> Chogyam Trungpa, Rinpoche
>
>
>
>
>
> ___
> 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.
>



-- 
Richard J. Dougherty, Ph.D.
Chairman, Politics Department
University of Dallas
1845 E. Northgate Drive
Irving, TX 75062
972-721-5043
___
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

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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Marty Lederman

Just to be clear:  Tom is right.  I was not making any point about whether
and to what extent legislators (or voters) may or may not permissibly be
motivated by religion in their decision-making, and certainly was not
making a point about Establishment Clause limits.  I was simply making the
rather uncontroversial points (which Kennedy made in his opinion) (i) that
many voters and legislators oppose SSM because of their understanding of
the word of God, or because their religion has otherwise taught them that
marriage should be reserved for a man and a woman, and (ii) that a state
cannot invoke such religious reasons as a basis for justifying denial of
the benefits of civil marriage to same-sex couples.

On Fri, Jul 3, 2015 at 1:15 PM, Berg, Thomas C.  wrote:

>  Marty refers to "religious justifications upon which the civil state
> cannot rely." I am OK with this language if it's understood narrowly, but
> it has the potential to do mischief. It should mean that (1) religious
> justifications cannot serve as the only basis for legislation (which I
> think happens very seldom), and (2) that religious justifications (like
> many other justifications) cannot have sufficient status (as a shared basic
> civil norm or a compelling interest) to override fundamental or important
> rights on the other side.
>
> Phrasing like Marty's above might--but should not--be read to encourage
> Establishment Clause challenges to laws where religious motivations and
> arguments play a significant role but there are other rationales too.
> Standards like "was religion the prime motivator or rationale" should be
> rejected, because they would wrongly place disabilities on religious views,
> and their proponents, in politics. Not only conservatives, but also
> liberals, have good reasons to oppose such a result.
>
> Micah Schwartzman and I go back and forth on clarifying this issue in his
> U. Chicago piece, "What If Religion Is Not Special?," and my response.
> (Andy Koppelman weighs in too; and maybe others?)
>
> https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/79_4/03%20Schwartzman%20ART%20.pdf
>
> https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/Dialogue/Berg_Dialogue.pdf
>
>
> -
>
> Thomas C. Berg
>
> James L. Oberstar Professor of Law and Public Policy
>
> University of St. Thomas School of Law
>
> MSL 400, 1000 LaSalle Avenue
>
> Minneapolis, MN   55403-2015
>
> Phone: 651 962 4918
>
> Fax: 651 962 4881
>
> E-mail: tcb...@stthomas.edu
> <https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=mailto%3atcberg%40stthomas.edu>
>
> SSRN: http://ssrn.com/author='261564
> <https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564>
>
> Weblog: http://www.mirrorofjustice.blogs.com
>
>
> 
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [
> lederman.ma...@gmail.com]
> *Sent:* Friday, July 03, 2015 11:32 AM
> *To:* Law & Religion issues for Law Academics
> *Cc:* conlawp...@lists.ucla.edu
> *Subject:* Re: The Remarkable Disappearance of State Justifications in
> Obergefell
>
>   I agree with Doug that "the majority gave short shrift to the state’s
> reasons because they viewed them as ridiculous" and that "the dissenters
> [mostly] didn’t talk about them because they didn’t really believe them,
> either."  I also agree that at least three of the dissenters (not sure
> about the Chief) think that moral disapproval ought to be sufficient.  But
> to the extent Scalia and Thomas
>
>  However, to the extent Scalia and Thomas believed "there was no right in
> the first place and [thus] nothing had to be justified," that'd be
> plainly mistaken, no?  Surely the state is required to satisfy at least
> rational basis review if it discriminates in offering access to this
> extraordinarily important civil institution.
>
> On Fri, Jul 3, 2015 at 12:21 PM, Doug Laycock 
> wrote:
>
>>  I think the majority gave short shrift to the state’s reasons because
>> they viewed them as ridiculous. I think the dissenters didn’t talk about
>> them because 1) they didn’t really believe them either, and 2) they didn’t
>> have to get that far because a) there was no right in the first place and
>> nothing had to be justified, and b) if any justification were required,
>> moral disapproval was enough.
>>
>>
>>

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Richard Dougherty

Being Muslim (or Christian) has nothing to do with it, but the answer is
yes, depending on which Muslims you are talking about.  There is, of
course, a long history of Muslim thought that recognizes what is natural
(no need for the scare quotes with them).

On Fri, Jul 3, 2015 at 3:00 PM, Malla Pollack 
wrote:

> Natural law is a figment of Christian imagination.  Do you really think
> that Muslims think western "natural law" is "natural"?
>
> Malla
>
> On Fri, Jul 3, 2015 at 3:52 PM, Richard Dougherty 
> wrote:
>
>> Largely agree with this point, except for one major caveat -- natural law
>> arguments are not religious arguments.  That's what is natural about them.
>> The collapse of the distinction between natural and religious is precisely
>> what allows for the dismissal of natural law arguments as not applicable to
>> the public realm of a secular society (whatever that phrase may mean or
>> entail, a great source of contestation).
>>
>> Richard Dougherty
>>
>> On Fri, Jul 3, 2015 at 2:44 PM, Marc R Poirier 
>> wrote:
>>
>>>
>>>
>>>
>>>
>>> Judy and all:
>>>
>>>
>>>
>>> You write: “Sexual relations that can lead to procreation should occur
>>> only between a man and a woman...uh, this pertains to same-sex couples how?
>>> ”
>>>
>>>
>>>
>>> I suspect the writer meant to write: “Sexual relations, which can lead
>>> to procreation, should occur only between a man and a woman.”  That would
>>> make it a natural law argument, one that does not refer to God.  It’s part
>>> of a millennia-long (probably inevitably recurring) notion that sex is
>>> basically polluting and is redeemed by various kinds of restrictions.  One
>>> functional and redemptive justification for sexual activity is potential
>>> procreation.  Not pleasure, not fostering a bond of companionship, not the
>>> release of important desires.  As you well know, in the Judea-Christian
>>> tradition, non-procreative sex is problematic, and in one version of
>>> Christianity pleasure in sex is itself sinful.  (Not so in traditional
>>> Judaism!)
>>>
>>>
>>>
>>> But of course to say all this openly brings religion and perhaps God
>>> back into the state’s justification.  What happens instead is to make
>>> certain kinds of conclusions about sex statements of obvious fact and then
>>> claim rational basis.
>>>
>>>
>>>
>>> Warmly,
>>>
>>>
>>>
>>>
>>>
>>> Marc R. Poirier
>>>
>>> Professor of Law and Martha Traylor Research Scholar
>>>
>>> Seton Hall University School of Law
>>>
>>> One Newark Center
>>>
>>> Newark, NJ 07102-5210
>>>
>>> 973-642-8478 (work)
>>>
>>> 973-642-8546 (fax)
>>>
>>> 201-259-0896 (mobile)
>>>
>>> Selected articles and drafts available at http://ssrn.com/author=1268697
>>>
>>>
>>>
>>>
>>>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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 
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Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Marty Lederman

In this passage Roberts was not describing a state interest that might
justify denial of marriage to same-sex couples.  And I certainly hope he
was not personally endorsing the notion that "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"--or suggesting that any
jurisdiction in the United States currently endorses that view!  He was,
instead, describing one reason why societies had historically established
the institution of marriage between men and women--namely, to establish
"lasting bonds" between those who have sexual relations that might lead to
procreation.  Justice Kennedy himself offers additional such historical
reasons, such as to give families the power to control the fate of their
children (with arranged marriages), and to support the institution of
coverture.

Societies establishing the institution of marriage for these reasons
undoubtedly never even considered whether to extend the institution to
same-sex couples--indeed, it's unlikely they often considered the existence
of committed same-sex couples at all.

But the question *today* is whether a state has a legitimate reason
for *affirmatively
excluding *same-sex couples from the *current *institution of marriage,
which is rarely if ever based upon these historical foundations.  And
as to *that
*question, the Chief understandably does not invoke these historical bases
for marriage, which have little or nothing to do with the current
institution or the state's support for it.  Instead, he has but a single,
inadequate response, which I quoted in my post--namely, tradition *qua *
tradition.

On Fri, Jul 3, 2015 at 1:21 PM, Michael Worley  wrote:

> 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" 
>> 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]
>>
>>
>> _

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Levinson, Sanford V

Actually, what we label "natural law" is a figment in the West of Greek 
imagination, since the arguments can be found in Plato and Aristotle, even if 
they were most fully developed by Thomas Aquinas. And, alas, Jewish and, I 
presume Islamic, law is thoroughly homophobic. None of this affects my support 
for Obergefell, but we should recognize this as a truly important moment in 
works culture, signaled far more significantly by the Irish referendum than by 
the vote of five American justices.

Sandy

Sent from my iPhone

On Jul 3, 2015, at 4:03 PM, Malla Pollack 
mailto:mallapolla...@gmail.com>> wrote:

Natural law is a figment of Christian imagination.  Do you really think that 
Muslims think western "natural law" is "natural"?

Malla

On Fri, Jul 3, 2015 at 3:52 PM, Richard Dougherty 
mailto:dou...@udallas.edu>> wrote:
Largely agree with this point, except for one major caveat -- natural law 
arguments are not religious arguments.  That's what is natural about them.  The 
collapse of the distinction between natural and religious is precisely what 
allows for the dismissal of natural law arguments as not applicable to the 
public realm of a secular society (whatever that phrase may mean or entail, a 
great source of contestation).

Richard Dougherty

On Fri, Jul 3, 2015 at 2:44 PM, Marc R Poirier 
mailto:marc.poir...@shu.edu>> wrote:


Judy and all:

You write: "Sexual relations that can lead to procreation should occur only 
between a man and a woman...uh, this pertains to same-sex couples how?"

I suspect the writer meant to write: "Sexual relations, which can lead to 
procreation, should occur only between a man and a woman."  That would make it 
a natural law argument, one that does not refer to God.  It's part of a 
millennia-long (probably inevitably recurring) notion that sex is basically 
polluting and is redeemed by various kinds of restrictions.  One functional and 
redemptive justification for sexual activity is potential procreation.  Not 
pleasure, not fostering a bond of companionship, not the release of important 
desires.  As you well know, in the Judea-Christian tradition, non-procreative 
sex is problematic, and in one version of Christianity pleasure in sex is 
itself sinful.  (Not so in traditional Judaism!)

But of course to say all this openly brings religion and perhaps God back into 
the state's justification.  What happens instead is to make certain kinds of 
conclusions about sex statements of obvious fact and then claim rational basis.

Warmly,


Marc R. Poirier
Professor of Law and Martha Traylor Research Scholar
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8478 (work)
973-642-8546 (fax)
201-259-0896 (mobile)
Selected articles and drafts available at http://ssrn.com/author=1268697

Somebody has to plant the seed so that sanity can happen on this earth. -- 
Chogyam Trungpa, Rinpoche



___
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.



--
Richard J. Dougherty, Ph.D.
Chairman, Politics Department
University of Dallas
1845 E. Northgate Drive
Irving, TX 75062
972-721-5043

___
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conlawp...@lists.ucla.edu
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Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Jean Dudley

It seems to me that natural law establishes a certain percent of any mammalian 
species be non-reproductive—in some cases through homosexual pair bonding.  
It’s up to us as human beings, and legislative creatures, to decide if same-sex 
pair bondings between consenting adult human beings be granted the same right 
to state-sanctioned marriage as both reproductive and non-reproductive opposite 
sex pair-bondings.   Which we have done.  


> On Jul 3, 2015, at 1:32 PM, Levinson, Sanford V  
> wrote:
> 
> Actually, what we label "natural law" is a figment in the West of Greek 
> imagination, since the arguments can be found in Plato and Aristotle, even if 
> they were most fully developed by Thomas Aquinas. And, alas, Jewish and, I 
> presume Islamic, law is thoroughly homophobic. None of this affects my 
> support for Obergefell, but we should recognize this as a truly important 
> moment in works culture, signaled far more significantly by the Irish 
> referendum than by the vote of five American justices. 
> 
> Sandy
> 
> Sent from my iPhone
> 
> On Jul 3, 2015, at 4:03 PM, Malla Pollack  > wrote:
> 
>> Natural law is a figment of Christian imagination.  Do you really think that 
>> Muslims think western "natural law" is "natural"?
>> 
>> Malla 
>> 
>> On Fri, Jul 3, 2015 at 3:52 PM, Richard Dougherty > > wrote:
>> Largely agree with this point, except for one major caveat -- natural law 
>> arguments are not religious arguments.  That's what is natural about them.  
>> The collapse of the distinction between natural and religious is precisely 
>> what allows for the dismissal of natural law arguments as not applicable to 
>> the public realm of a secular society (whatever that phrase may mean or 
>> entail, a great source of contestation).
>> 
>> Richard Dougherty
>> 
>> On Fri, Jul 3, 2015 at 2:44 PM, Marc R Poirier > > wrote:
>>  
>> 
>>  
>> 
>> Judy and all:
>> 
>>  
>> 
>> You write: “Sexual relations that can lead to procreation should occur only 
>> between a man and a woman...uh, this pertains to same-sex couples how?”
>> 
>>  
>> 
>> I suspect the writer meant to write: “Sexual relations, which can lead to 
>> procreation, should occur only between a man and a woman.”  That would make 
>> it a natural law argument, one that does not refer to God.  It’s part of a 
>> millennia-long (probably inevitably recurring) notion that sex is basically 
>> polluting and is redeemed by various kinds of restrictions.  One functional 
>> and redemptive justification for sexual activity is potential procreation.  
>> Not pleasure, not fostering a bond of companionship, not the release of 
>> important desires.  As you well know, in the Judea-Christian tradition, 
>> non-procreative sex is problematic, and in one version of Christianity 
>> pleasure in sex is itself sinful.  (Not so in traditional Judaism!)
>> 
>>  
>> 
>> But of course to say all this openly brings religion and perhaps God back 
>> into the state’s justification.  What happens instead is to make certain 
>> kinds of conclusions about sex statements of obvious fact and then claim 
>> rational basis.
>> 
>>  
>> 
>> Warmly,
>> 
>>  
>> 
>>  
>> 
>> Marc R. Poirier
>> 
>> Professor of Law and Martha Traylor Research Scholar
>> 
>> Seton Hall University School of Law
>> 
>> One Newark Center
>> 
>> Newark, NJ 07102-5210
>> 
>> 973-642-8478  (work)
>> 
>> 973-642-8546  (fax)
>> 
>> 201-259-0896  (mobile)
>> 
>> Selected articles and drafts available at http://ssrn.com/author=1268697 
>> 
>>  
>> 
>> Somebody has to plant the seed so that sanity can happen on this earth. -- 
>> Chogyam Trungpa, Rinpoche
>> 
>>  
>> 
>>  
>> 
>> 
>> ___
>> 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.
>> 
>> 
>> 
>> -- 
>> Richard J. Dougherty, Ph.D.
>> Chairman, Politics Department
>> University of Dallas
>> 1845 E. Northgate Drive
>> Irving, TX 75062
>> 972-721-5043 
>> ___
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>> 
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>> 
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>> private.  Anyone can subsc

Re: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-05 Thread Perry Dane

 

For what it's worth, I'm actually one of those folks who like
Justice Kennedy's opinion in _Obergefell. _And one reason I like it is
that he doesn't play the usual game of means-end analysis, which in
previous iterations has too often either hollowed out the meaning of
marriage or belittled its potential significance for gay men and women.


For my own argument that is perfectly sensible both (a) to acknowledge
that marriage is in some real sense a paradigmatically heterosexual
institution and at the same time (b) conclude that a decent, fair, and
just society should under the conditions of our age extend that
institution to same-sex couples see http://ssrn.com/abstract=2338239


Perry Dane ___
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Re: FW: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Marty Lederman

In his second point, Earl is re-arguing some of the rationales that states
have, in fact, invoked in the marriage cases over the past dozen or more
years.  I don't want to rehash the merits of those arguments, having spent
countless hours in and out of government for many years contending with
them.  Indeed, the principal point of my post was not to reopen the merits
of these debates --which we've been over on these listservs countless times
over the years, too -- but instead to note how shocking it is that the
Court's opinions do *not *rehearse those arguments in any detail because it
had become evident to all involved (including the Justices) that the
arguments are in fact far removed from the *actual *reasons that modern
states promote the institution of civil marriage and why many such states
have decided to exclude same-sex couples from that institution.  (Or so I
argue, in any event.)

I'll address Earl's first point in a separate post, because it deserves its
own attention.

On Fri, Jul 3, 2015 at 2:24 PM, Earl Maltz 
wrote:

>
>
>
>
> *From:* Earl Maltz
> *Subject:* RE: The Remarkable Disappearance of State Justifications in
> Obergefell
>
>
>
>
>
> It is only with the greatest reluctance that I enter this discussion.
> However, there are a couple of implications that I cannot in good
> conscience allow to pass.
>
>
>
> Preliminarily, I would like to comment on the notion that Kennedy actually
> showed respect to those who do not believe that the state give the legal
> status of marriage to same-sex unions.  In fact, as Chief Justice Roberts
> noted, after making a big show of saying he respected those who disagreed
> with him, Kennedy essentially branded them as bigots.  The language on p.
> 19 cannot be understood in any other way.
>
>
>
> More importantly, the suggestion that there is no rational reason for
> limiting the legal status of marriage to opposite sex unions (as opposed to
> the kumbaya version discussed by Kennedy) is simply wrong as a matter of
> fact.
>
>
>
> First, we should be clear about what was at stake in Obergefell.  Prior to
> the decision, states were allowed to simply be neutral on the status of
> same sex unions.  Unlike polygamous unions, same sex couples were allowed
> to announce that they were married and asked people to treat them as a
> married couple.  By contrast, Obergefell requires states to affirmatively
> endorse same sex unions.
>
>
>
> Second, as Alito comes very close to stating, one of the main incidents
> of the status of marriage is the creation of the presumption of paternity
> in the husband, which in turn carries with it responsibilities toward the
> child and rights with respect to himâ€”a presumption embodied in every
> statutory scheme defining marital rights and responsibilities.  In other
> words, marriage creates a framework that allows men and women to have
> sexual relations with one and other and to have the status of any offspring
> determined ex ante.  It is certainly rational for the state to take the
> position that, in the absence of such an interest, it should not take
> either side on a moral issue on which its populace is deeply divided.
>
>
>
> BTW, the idea that states should be required to conduct fertility tests in
> order to assert this interest with respect to opposite sex couples is
> absurd on its face.
>
> _
___
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Please clearly identify the sender -- RE: The Remarkable Disappearance of State Justifications in Obergefell

2015-07-03 Thread Scarberry, Mark

Twice it has appeared that comments by others were mine. Please identify 
yourselves clearly when you send a post. For example, the post immediately 
below could be taken to be my response to a question that Eric asked me 
directly. In fact it was from Michael Worley.

The “from” line doesn’t always make it easy to see who a post is from. Please 
append your name at the end of your post.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: Michael Worley [mailto:mwor...@byulaw.net]
Sent: Friday, July 03, 2015 11:15 AM
To: Eric J Segall
Cc: Scarberry, Mark; Law & Religion issues for Law Academics; 
conlawp...@lists.ucla.edu
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell

I don't have to; I was saying that was the state's argument; therefore, Marty 
is incorrect in saying that the dissenters didn't mention the state's arguments.

On Fri, Jul 3, 2015 at 12:03 PM, Eric J Segall 
mailto:eseg...@gsu.edu>> wrote:
You are saying the SSM bans enacted in the last 20 years were about procreation?

Eric

Sent from my iPhone

On Jul 3, 2015, at 1:54 PM, "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
I have to say one last thing before excusing myself from this discussion.

Justice Roberts’s explanation of the institution of marriage leads to  clearly 
rational basis for not expanding it to include same sex couples. Expanding it 
may affect or dilute the social meaning of the institution and reduce its 
effectiveness in accomplishing the goals described by the Chief. We don’t know 
whether that will happen, and we never will know, because the variables can’t 
be controlled. That’s enough to provide a rational basis.

With regard to whether it is rational to limit the institution to a union 
between a man and a woman, but to limit it in various other ways: There are 
many reasons why it would be rational not to limit the institution in those 
other ways. An inquiry into whether the man and woman are able to have children 
would be intrusive (and sometimes would yield the wrong answer). Ditto for an 
inquiry into whether they plan to have children, an inquiry that would be very 
inaccurate in determining whether the couple really will have children. There 
is no age line that can be drawn that accurately divides women who can bear 
children naturally from those who cannot, and there is no age, as far as I 
know, beyond which a man cannot naturally father a child. In any case, it is 
rational not to set different ages for men and for women. To the extent that 
the institution is designed to keep natural parents together as they raise 
children, any age limit would rationally be extended by 17 years or more.

Signing off for now.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law




From: Eric J Segall [mailto:eseg...@gsu.edu]
Sent: Friday, July 03, 2015 10:33 AM
To: Michael Worley; Scarberry, Mark
Cc: Law & Religion issues for Law Academics; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell


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<mailto:conlawprof-boun...@lists.ucla.edu> 
mailto:conlawprof-boun...@lists.ucla.edu>> 
on behalf of Michael Worley mailto: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<mailto: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 
mailto: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 l

FW: The Remarkable Disappearance of State Justifications in Obergefell, federal laws of the family

2015-07-03 Thread Doug Laycock

The post below is from Judith Resnik, who for some reason is able to read our 
musings but not able to reply. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Resnik, Judith 
Sent: Friday, July 03, 2015 4:18 PM
To: 'Doug Laycock'; 'Law & Religion issues for Law Academics'
Cc: conlawp...@lists.ucla.edu <mailto:conlawp...@lists.ucla.edu> 
Subject: RE: The Remarkable Disappearance of State Justifications in 
Obergefell, federal laws of the family 

 

 

I’m joining with Doug and wanted to add that, as many of us have detailed over 
the last decades, an essentialist approach to jurisdiction (family, women, 
children=state) was wrong as a matter of fact and that essentialist approaches 
to jurisdictional allocations were normatively misconceived.  Of course the 
ready example is the master/servant argument and slavery, and the “domestic” 
realm is another one – painfully claimed in the VAWA case, Morrison, when Chief 
Justice Rehnquist held,  5-4 that Congress could not, at least as it had done 
in VAWA, reach violence against women, which was a “local” as compared to a 
“national” issue.  

 

The federal statutory laws of the family include ERISA, bankruptcy, social 
welfare benefits, Indian law, and immigration, inter alia. The constitutional 
laws of the family are reflected in Santosky, Troxel, and Loving, inter alia 
before this iteration. 

 

This categorical federalism approach is also at odds with the emerging 
international right to be free from household violence. The ECtHR found against 
Lithuania for failing to provide remedies for a woman hurt by her domestic 
partner. 

 

 

From: conlawprof-boun...@lists.ucla.edu 
<mailto:conlawprof-boun...@lists.ucla.edu>  
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Friday, July 03, 2015 12:21 PM
To: 'Law & Religion issues for Law Academics'
Cc: conlawp...@lists.ucla.edu <mailto:conlawp...@lists.ucla.edu> 
Subject: RE: The Remarkable Disappearance of State Justifications in Obergefell

 

I think the majority gave short shrift to the state’s reasons because they 
viewed them as ridiculous. I think the dissenters didn’t talk about them 
because 1) they didn’t really believe them either, and 2) they didn’t have to 
get that far because a) there was no right in the first place and nothing had 
to be justified, and b) if any justification were required, moral disapproval 
was enough. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

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The Remarkable Disappearance of State Justifications in Obergefell

RE: The Remarkable Disappearance of State Justifications in Obergefell

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FW: The Remarkable Disappearance of State Justifications in Obergefell, federal laws of the family

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