Same Sex Marriage

A right to marry and the constitution My opponent argues that there is a right to marriage and prohibiting homosexuals from this right is unconstitutional. My opponent seems to have not fully understood the legal ramifications and meaning of marriage. Indeed, I agree marriage is a right, but not gay marriage. My opponent cites the famous Freeman v. Contradiction debate (freeman = pro-SSM). Freeman “proved” SSM was unconstitutional, forgetting Contradiction won the debate and refuted the constitutional argument. When it comes to the constitution, Contradiction and I have similar arguments on the issue (actually, we hold the same position overall). To elaborate my point as to why SSM is not a right but marriage is, I point out a few obvious points. You cannot call a certain marriage policy unjust, unequal, or unconstitutional unless you first know what marriage is. We must answer this question if we are to conclude whether or not DOMA (or other bans) violate the constitution. As the famous Girgis et al. paper writes, “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. 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.”[1] And Girgis et al. write in their new book, “the state is within its rights to recognize only true marriages, People who cannot enter marriages so understood (for whatever reasons) are not denied the right to marriage, even when they cannot control the factors that kept them single. … [T]here is no general right to marry the person you love, if this means the right to consensual relationship recognized as marriage. There is only a general right not to be prevented from forming a true marriage.”[2] The argument is fairly straightforward: marriage has an objective meaning, and the courts often utilize this term. The question is whether or not the court cases my opponent cited (like Loving) actually apply to same sex marriage at all. Because if marriage itself it heterosexual, a right to marriage, as described to the courts, is not the same as a right to same-sex “marriage”. I shall restate: if marriage is heterosexual in nature, when the courts use the term marriage, it simply does not apply to homosexuals. Now, since the writing of the book and paper by Girgis, there have been some legal authors also adopting this view. For example, in Conaway v. Deane the court noted, “virtually every supreme court case recognizing as a fundamental right to marry indicates as the basis for the conclusion the institution’s inextricable link to procreation.” In Anderson v. King county, the court noted, “[w]hile the State agrees marriage is a fundamental right, it says that it does not include same sex-sex marriage.” Indeed, Loving itself argues, “the freedom of choice to marry not be restricted by invidious racial discrimination.” Note Loving when you actually read the court case notes (i) that marriage is a right because of procreation (and other attributes), and (ii) we cannot separate them based on race alone. Unless my opponent wishes to use the antimiscegenation analogy, using the Loving court case really has no bearing on this debate. Edward Meese, former Attorney General, writes, “[o]n the merits, neither the Due Process nor the Equal Protection Clauses require that marriage be radically redefined to encompass relationships other than the union of one man and one woman. The fundamental right to marry recognized by this Court in Loving as protected by the Due Process Clause was tied to the unique procreative capacity of opposite-sex unions, a fact that also renders same-sex and opposite-sex relationships not R13;similarly situated for purposes of Equal Protection analysis, a threshold inquiry.”[3] [emphasis mine]. As we can see, my opponent’s legal arguments are false. Case My case is simple: marriage is a comprehensive union with a special link to children. Indeed, marriage is a private union but has a public purpose. Comprehensive union (love, monogamy, amongst many other criteria) generally covers the private purpose, however does have an intrinsic value to the state as well. But the public purpose is generally the link to children through procreation and child rearing. Marriage is intrinsically related to child rearing and creation. It is made for male-female complimentary to encourage responsible procreation. Marriage brings a coming together or two bodies, working together to reach a common goal. Girgis et al. write, “[p]rocreation is a good that fulfills and extends marriage.”[4] Marriage itself is an intrinsic good, which the state ought to regulate. Procreation is merely another benefit offered by the institution. When the bodies come together to consummate their love through the generative act, they extend their good to society by upholding these societal norms, and the fruits of the procreation (babies and child rearing) are a bonus to the comphrehensive union. Homosexuals cannot fulfill what marriage is, and portraying a false view of marital natute (and further divorcing marriage from a comprehensive union with a special link to children) is not in the states interest, therefore gay marriage should not be upheld. CONCLUSION My opponent needs to show two things: (1) What is marriage? Does he have a definition? For his arguments to be correct, he must provide what marriage is. (2) What is the states interest in marriage? Does it have one? If he cannot answer these questions, he loses the debate. Good luck! 1. Sherif Girgis, Robert P. George, and Ryan T. Anderson, “What is Marriage?” Harvard Journal of Law and Public Policy 34, no. 1 (Winter 2010) 2. Sherif Girgis, Robert P. George, and Ryan T. Anderson, What is Marriage? Man and Woman: A Defense. Encounter Books, 2012. 3. http://www.americanbar.org... 4. Girgis et al. What is marriage? 2012