Marriage: Gender and Conjoined Twins
Mark.Scarberry at pepperdine.edu
Tue Mar 16 09:47:38 PST 2004
Two questions for Ilya, but first, the setup:
Suppose a state determines that marriage is mostly a matter of providing a
good environment for the raising of children. Suppose a state also decides
that it will restrict marriage to hetero couples, because those couples are
the only ones who can procreate without technological intervention. But the
state decides not to pry into the medical history of couples to determine
whether they can in fact have children without technological intervention.
And the state decides not to place an age limit on those who would be
married. Many men remain able to procreate naturally well past the age at
which no woman remains able to do so. If men who are, say, 65, were
permitted to marry because they might be able to procreate, but women of the
same age were not, then we would have clear gender-based discrimination. The
state chooses not to engage in such gender-based discrimination.
Now the questions:
1. Wouldn't the state very likely violate equal protection if it chose to
engage in such gender-based discrimination?
2. Doesn't this mean that the state's allowing women of any age to enter
into marriage is not inconsistent with the state's determination that
marriage is mostly a matter of providing a good environment for the raising
I think the answer to both questions is "yes." If so, then the argument is
entirely unpersuasive that the state is being irrational (or acting purely
out of animus) when it allows older women to marry men, but does not allow
same-sex couples to marry.
Mark S. Scarberry
Pepperdine University School of Law
From: Ilya Somin [mailto:isomin at fas.harvard.edu]
Sent: Monday, March 15, 2004 11:19 PM
To: Sisk, Gregory C.
Cc: 'conlawprof at lists.ucla.edu'
Subject: RE: Marriage: Gender and Conjoined Twins
Turning to the second argument, it is true that some of the cases I cite
pose administrative barriers that are not present with a ban on same-sex
marriage. But others don't. For example, a ban on marriages by
post-menopausal women could be enforced simply by imposing an age limit.
True, different women reach menopause at different times, but we could
still adopt a law saying, for example, that no women over 65 can enter
into a new marriage without excluding any significant number of still
fertile women. We could make an analogous law for men. This law would not
be "intrusive," would not require extensive new information-gathering, and
so forth. Indeed, government already has data on the ages of citizens.
More broadly, this argument turns on the costs of implementation. It is
therefore open to the objection that we should exclude these categories of
heteros from marriage if the costs were lower (e.g. - if new technology
enables us to separate out infertile people in a "nonintrusive" way).
Presumably, Greg would not support this.
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