Same-Sex Marriage Should Be Legal in the United States

It's a pleasure to be debating as esteemed an opponent as Freeman. Having viewed his debates, I can anticipate a challenge from him. In this debate, I will be arguing for the position that the United States government should not legalize same-sex marriage (Hereafter referred to as SSM). This is because a revisionist conception of marriage does not make sense of the state's interest in marriage, nor does it capture what marriage actually is. Since this debate involves issues of what the law should be, a large part of this debate will necessarily involve the use of extra-legal arguments. This isn't to say that existing precedent and case law is irrelevant, only that it is fallible and not the final say. Pro seems to treat this as a purely legal debate. However, a debate on how the law should be will have to involve arguments of an extra-legal nature. This is why courts commonly solicit the testimony of expert witnesses and use amicus curiae briefs.Marriage as a Fundamental RightBoth myself and Pro are in agreement on this point. No doubt proponents from both sides recognize that marriage is a fundamental human and civil right. However, this is where our agreement ends, for though we recognize that marriage is a fundamental right, we differ radically on what the term "marriage" means and entails.Equal Protection and Due Process are IrrelevantThe debate over SSM is fundamentally over what marriage is. One cannot invoke notions of discrimination or denial of equal rights without first presupposing a certain answer to this question. After all, "to claim a liberty has been violated, marriage must be defined." [1] As Robert George, Sherif Girgis, and Ryan Anderson note:"Any legal system that distinguishes marriage from other, nonmarital forms of association, romantic or not, will justly exclude some kinds of union from recognition. So before we can conclude that some marriage policy violates the Equal Protection Clause, or any other moral or constitutional principle, we have to determine what marriage actually is and why it should be recognized legally in the first place. [Emphasis mine] That will establish which criteria (like kinship status) are relevant, and which (like race) are irrelevant to a policy that aims to recognize real marriages. So it will establish when, if ever, it is a marriage that is being denied legal recognition, and when it is something else that is being excluded." [2]In arguing that homosexual couples are being unjustly denied the right to marry, Pro presupposes that there is such a right. Only if there is this right will the discrimination argument work to begin with. In doing so, however, he begs the question by presupposing a conception of marriage in which this right exists. If there is no such right to begin with, then notions of Equal Protection and Due Process simply do not apply.It also follow from this that even if homosexuals qualify as a suspect class, relatively nothing of importance follows in terms of marriage litigation. For if marriage is such that it is heterosexual by nature, then there simply exists no right to homosexual marriage, regardless of whether or not homosexuals qualify as a suspect class. They are not being unjustly denied a right, because such a right does not exist to begin with.What we see from this is that Pro's argument hinges on a certain conception of marriage -- one which he has failed to justify in his opening argument. What Marriage Is Consider the definition of marriage offered by Pro: the "expression of emotional support and public commitment." If we understand marriage in this way, why should the state recognize it at all? What are the state's interests in recognizing a purely romantic and emotional relationship. Indeed, it seems queer given this understanding that the state would concern itself with regulating how human relationships are structured. "Why does the state not set terms for our ordinary friendships? Why does it not create civil causes of action for neglecting or even betraying our friends? Why are there no civil ceremonies for forming friendships or legal obstacles to ending them?" [3]The answer: "It is simply because ordinary friendships do not affect the political common good in structured ways that justify or warrant legal regulation." [4] The same is true of marriage if understood as a purely romantic relationship. It does not make sense of why the state is in the marriage business to begin with. It is therefore inadequate as a definition of marriage. Yes, marriage is a fundamental right, but why does the state regard it as a fundamental right? The Supreme Court, ruling against eugenics laws in Skinner v. Oklahoma, provided us with some excellent insight when it said that "[m]arriage and procreation are fundamental to the very existence and survival of the [human] race." [5]In other words, marriage is a fundamental right because "only societies that reproduce survive." [6] The procreative act, therefore, is at the heart of what marriage is. This fits in with how the traditionalist defines marriage -- as a union between one man and one woman. It is only when it is understood this way does the state's role in marriage make sense. The state, therefore, has a compelling reason to recognize as marriages only those relationships which are procreative in type. This is precisely why the state subsidizes heterosexual marriages with certain legal and economic benefits. Because homosexual marriages are non-procreative in principle, they do not count as marriages to begin with. Hence they are not being denied marriage rights or due process simply because their relationship doesn't count as a marriage.If the SSM advocate cannot give a compelling reason for why the state should recognize same-sex marriages, then his case fails. Notice that at this point he cannot appeal to notions of Equal Protection or Due Process, for this would be engaging in circular reasoning. The debate, after all, is over what marriage is. Invoking either to prove a revisionist conception of marriage is to assume its validity, for appeals to Equal Protection or Due Process only work if there is such a right, which is what we're trying to establish. There are thus two tasks for the SSM advocate:1. He must provide and justify a definition of marriage.2. He must show how this definition makes sense of the state's interest in marriage.However, as we have seen, the revisionist's definition of marriage as primarily a relationship centered around love and commitment utterly fail to make sense of the state's interest in marriage. Moreover, it fails to capture what we generally know to be true about marriage.ConclusionWhat shall we make of Pro's arguments? Patrick Lee, Gerard Bradley, and Robert George sum it up nicely:"So, the state’s granting marriage licenses only to opposite-sex couples is based on the nature of marriage and does not constitute unjust discrimination. The state grants a license to do X only to someone presumptively capable of doing X. It is no more unjust discrimination to deny marriage licenses to couples of the same sex than to twelve-year olds, to those already married, or to polyamorous groups of three or more sexual partners: in each case, the license is denied simply because the individuals in question are unable to form with each other the kind of union that marriage is." [7] This is because marriage, properly understood, is between one man and one woman. As I have argued, only the conjugal conception of marriage is able to justify the state's involvement in marriage. I eagerly await Pro's counterargument.Sources: http://www.debate.org...