There is no rational basis for banning gay marriage.

== The standard of review == Let's start with a little background on the rational basis test. The test was first created as a reaction to the "Lochner era," in which five very libertarian justices on the Supreme Court struck down any law that violated their libertarian ideals of small government. [1] The Court struck down child labor laws, minimum wage laws, and occupation licensing requirements. [1] President FDR was so incensed that he threatened to pack the Court with a bunch of new justices that would stop striking down New Deal legislation just because they personally disagreed with it. In reaction to this political backlash, the Court in Carolene Products devised the rational basis test, so that it would only strike down a law if it involved a "suspect classification" (like race or gender) or it involved a "fundamental right" (such as the right to marry). [1] The test is supposed to be so deferential that if no suspect classification exists, the challenger of the law is supposed to automatically lose in almost all cases. ("Rational basis review is so deferential that it has been called 'minimal scrutiny in theory and virtually none in fact.'") [1] Over one hundred laws have been challenged and upheld by the Supreme Court under rational basis review. [1] The way the Supreme Court analyzes these cases is it first asks whether a suspect classification appears on the face of the law. The following are recognized "suspect classes": race, national origin, religion, and gender. If a suspect classification exists, the Court applies intermediate or strict scrutiny. If no such classification exists, the Court applies the rational basis test. Sexual orientation is not currently recognized as a suspect classification, so courts apply the rational basis test to gay marriage. As my opponent points out, the rational basis test (RBT) requires that a law be "rationally related to a legitimate government purpose." However, as the Supreme Court explained in Romer v. Evans, a "legitimate" government interest just means any non-discriminatory purpose, i.e. any justification other than *mere dislike* for the targeted group. And as the Supreme Court explained in Heller v. Doe, "rational" means that one can theoretically conceive of a connection between the classification-at-issue and the "legitimate government purpose." [2] But more importantly, there are a few other features of RBT that make it so deferential: (1) The burden is on the person challenging the law, not the state. (As the Supreme Court said in Heller: "A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. . . . A statute is presumed constitutional, and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.") [2] (2) As the quote above explains, the *actual* purpose of the legislature in enacting the law doesn't matter. Any conceivable non-discriminatory justification is sufficient to save the law, even if it is presented for the first time in the courtroom. (3) Probably most devastating: the person attacking the law cannot use any evidence to rebut the theoretical justification. They have to show that the theoretical justification is *logically* irrational on its face. (As the Court said in Heller, "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.") [2] (4) The government does not have to show that the legislation is the best -- or even a good -- way of achieving the "legitimate" purpose. (As the Court explained in Heller, there is no "means ends" testing under RBT.) [2] (5) The government does not have to prove "solvency," i.e. that the challenged law will actually accomplish the "legitimate purpose" that justifies it. (Under rational basis review, "there is no requirement that the statute actually advance its stated purpose." Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 690 (9th Cir. 1993) (italics in original). (6) The question is whether the government has any conceivably legitimate basis for *enacting the law,* not whether there was a legitimate basis for *excluding* certain people. (As the Court said in Heller, laws can be deemed "rational" even if they cause "inequality," as long as there was a conceivably rational justification for enacting the law). [2] As Justice Kennedy is fond of saying, if this standard seems extremely deferential, it was meant to be. As the Court explained in Heller, RBT was enacted to avoid the pitfalls of the Lochner era. ("[R]ational basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. Nor does it authorize the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.") [2] == Encouraging responsible procreation == A state's refusal to recognize gay marriage implicates the Equal Protection Clause because a classification appears on the face of the law: gay people and straight people are treated differently. However, the rational basis test asks only whether there is any *conceivable* justification for enacting a marriage law that includes only straight people. There is obviously a conceivable non-discriminatory justification: gay people cannot naturally procreate with each other. There is zero risk of an unplanned pregnancy in a gay relationship. In contrast, the risk of unplanned pregnancy is an ever-present danger for young couples. The state could claim a legitimate interest in channeling young couples towards marriage to ensure they engage in responsible family planning and do not have children in an irresponsible manner. Under rational basis review, the state does not need to provide any data to prove that the availability of marriage actually reduces teenage pregnancy. Courts cannot require proof that the law works; they must accept the legislature's claims at face value. Any proffered non-discriminatory justification is deemed sufficiently "legitimate" to pass rational basis review. == Rebuttal == R1) Natural procreation A. Pro says the burden is on me to prove that excluding gay people from marriage promotes responsible procreation among straight couples. However, (1) the burden is always on the person challenging the law, (2) the question for RBT is whether it is legitimate to think that *marriage* promotes family-planning among straight couples, not whether one might think that *excluding gay people* promotes family-planning among straight couples (my opponent flips the RBT inquiry on its head), and (3) the court is not even allowed to look at data ("no courtroom factfinding"), but rather must accept the government's "rational speculation unsupported by evidence or empirical data." B. Pro says some straight couples can't reproduce. However, this doesn't matter. The Court in Heller says that the solution need not be well "tailored" to the problem (no means-ends testing) and that it need not be drawn with "mathematical nicety," meaning it can be overinclusive. [2] R2) Optimal parenting I don't run this argument, and the burden is on Pro to negate "every conceivable basis" for the exclusion (see Heller). So it doesn't matter if optimal parenting is not a good enough justification, as long as there is another "legitimate justification." == Make sexual orientation a suspect class== The Supreme Court has stated that when considering whether to establish a new suspect class, it should consider whether (1) there is a history of discrimination against the group, and (2) whether the group is defined by an immutable characteristic ( see Caroline Products). Gay people meet both criteria. If the Court recognized sexual orientation as a "suspect classification," it would apply intermediate scrutiny, which shifts the burden to the government to defend the law, allows courtroom factfinding, and requires an "exceeding persuasive" justification (as opposed to merely a "legitimate" one) [ see Hogan]. Same sex marriage would undoubtedly be required under intermediate scrutiny, and if the Supreme Court rested its decision on intermediate scrutiny, there is an additional net benefit that gay people will be better protected from a much wider variety of discriminatory laws and actions (e.g. discriminatory hiring by government contractors). [1] http://tinyurl.com... [2] http://tinyurl.com...