A Con Law Exam Question

By Mike Dorf
(Due to my confusion about dates, this post originally went up under a slightly different name, and went out in an email, on Wednesday.  I took down the earlier version.  If you read that one already, you needn't bother reading below, as there's nothing new here.)

(Update: Also, an earlier version of this post referred to an upcoming "break from blogging."  That was another error.  I originally wrote this post several weeks ago but delayed putting it up.  The break from blogging is over.)

In one of my very favorite novels, David Lodge's Changing Places, the narrator tells us the following about Professor Philip Swallow:
A colleague had once declared that Philip ought to publish his examination papers. The suggestion had been intended as a sneer, but Philip had been rather taken with the idea -- seeing in it, for a few dizzy hours, a heaven-sent solution to his professional barrenness. He visualized a critical work of totally revolutionary form, a concise, comprehensive survey of English literature consisting entirely of questions, elegantly printed with acres of white paper between them, questions that would be miracles of condensation, eloquence and thoughtfulness . . . .
And now my confession: I too REALLY enjoy writing exam questions. I detest grading them, of course, but writing them is great fun. Accordingly, I thought I'd live out Philip Swallow's pathetic fantasy by publishing my most recent exam. Herewith, question 1 from my basic course in constitutional law, just finished. I'll post question 2 tomorrow. (I won't be grading your answers!)

Question 1 (Weight: 35 percent)
You have been hired as a “December break law clerk” by the prestigious Des Moines, Iowa law firm of Huckabee, Palin & Romney. Your supervisor has just given you your first assignment.
John Sotomayor, age 54, and Sonia Roberts, age 52 are first cousins. John is a widower and Sonia has never been married. Both are lifelong U.S. citizens and residents of Iowa. John and Sonia would like to marry each other but Iowa law forbids first cousins to marry. See Iowa Code Ann. § 595.19. Growing evidence suggests that marriages between first cousins are not especially likely to result in offspring with genetic disorders. A story in the New York Times on November 25, 2009 reported:

For the most part, scientists studying the phenomenon worldwide are finding evidence that the risk of birth defects and mortality is less significant than previously thought. A widely disseminated study published in The Journal of Genetic Counseling in 2002 said that the risk of serious genetic defects like spina bifida and cystic fibrosis in the children of first cousins indeed exists but that it is rather small, 1.7 to 2.8 percentage points higher than for children of unrelated parents, who face a 3 to 4 percent risk — or about the equivalent of that in children of women giving birth in their early 40s. The study also said the risk of mortality for children of first cousins was 4.4 percentage points higher.
In any event, the marriage of John and Sonia would produce no genetic offspring at all, because Sonia had a hysterectomy in 2007.

John and Sonia would like to challenge the Iowa ban on first cousin marriage on the ground that it violates their due process and equal protection rights under the Fourteenth Amendment of the U.S. Constitution. Earlier this year, the Iowa Supreme Court found a right to same-sex marriage under the Iowa state constitution. See Varnum v. Brien, 763 N.W.2d 862 (IA 2009). Accordingly, John and Sonia have some hope that they might be able to persuade the Iowa courts to invalidate the ban on first-cousin marriage as a matter of state constitutional law. However, another law clerk has been asked to research John and Sonia’s options under the state constitution. Your task is to write an objective memorandum assessing the federal Fourteenth Amendment claims. Write the memo.