There is no Legally Tenable Position for Denying Homosexuals the Right to Marry Each Other

Let us begin on the points where we agree... 1) That there is a right to freedom of association in adult sexuality. 2) Laws attempting to prevent homosexuals from entering same-sex relationships violate their rights. Our dispute is over whether or not there is a right to a "standardized contract written by the state." Con asserts that the contract should be "identical to the heterosexual contract" and that it "must be called 'marriage.'" The resolution would be fulfilled by a contract highly similar to the heterosexual contract (the difference being any sort of gender specific language) and called marriage. Very specific, but let us not mince words. Con refers to marriage as a "contractual convenience." However, I argue that the right to marry is a form of specific association that the state simply has a contract for. In analogous form, I argue that association:marriage :: agreement:contract. Marriage is simply a legalized form of association. For purposes of the present line of reasoning, I stipulate that marriage is a right extended to citizens - all citizens have the right to apply for a marriage license. The state recognizes marriage as a vitally important social institution... it sounds silly to say that there is not a right to a vitally important social institution. Furthermore, if the concept of marriage is not a right and is instead a contractual convenience as Con suggests, the state has no right to regulate a private contract between two individuals, and the right to marry is entirely incorporated in the right to privacy. The state would then simply not confer social benefits on certain types of private contracts. Under this reading, the resolution is fulfilled because the position of interfering in the right to privacy is not legally tenable, and the question of conferring social benefits is not addressed by the resolution. Another notion to consider is whether or not homosexuals have been properly classified as a non-suspect class. A suspect class must have: a) An immutable characteristic b) A history of discrimination c) Political impotence d) A discrete and insular minority My opponent will no doubt attack the immutable characteristic requirement first. However, if homosexuality is truly genetic, then it is only subject to change via genetic mutation, a requirement that the court has overlooked in other cases. Regardless of his self-opinion or appearance, Michael Jackson is still genetically African-American - his apparent racial changes do not destroy race as a protected class. The rest of these criteria are easily met by homosexuals, thus qualifying them as a suspect class that is to be addressed by strict scrutiny, where the argument for denying them the right to marriage quickly fails under consideration of the due process and equality before the law clauses. Con asserts that the majority has a right to "maintain the traditional meaning of the word 'marriage.'" However, this suggests that the political majority may define legal terms. This is of course a silly notion. The desire of the majority to maintain the traditional meaning of marriage stems from some notion of morality or the "sanctity of marriage." When considering a suspect class or the conferral of a right, public morals cannot play a role in judicial decisions. Any legislation concerning the "sanctity" of marriage is likewise invalid under the separation of Church and State clause. Once again, my opponent asserts that homosexuality is not a protected class and that it is similar to gender. However, gender lacks an immutable characteristic, as one can undergo surgeries that legally change gender. One cannot remove the genetic coding for homosexuality. Thus, the state has improperly characterized homosexuality as a non-suspect class. Con asserts that separate but equal has not achieved legal standing outside of the context of racial integration. However, I challenge him to provide an example dealing with a suspect class wherein separate but equal is upheld. He gives the example of restrooms, but gender is not a suspect class. Next, he holds that "that the legal details regarding which parent obtains custody in a divorce might be different." However, in most states, the children even of a prohibited class of marriage are still lawfully the children of whoever biologically fathered/mothered/adopted them, and thus the legal considerations are exactly the same. >> "For the legal details of gay civil union, society does not have the knowledge currently to know if the contracts are best if identical to that for heterosexuals." This suggests to me that one should err on the side of caution. >> "The Con position on this issue is identical to that of Barack Obama, George Bush, John McCain, and Bill Clinton." This statement is the fallacy of appeal to improper authority. These men are not experts on the issues of gay rights and homosexual genetic tendencies (or, arguably, legal considerations relevant to the case at hand). >> "None of these people would take such a position if it were not legally tenable. The resolution should therefore fail." Again, another fallacy, this one combining improper authority and improper causation. ****************************************************** Con has asked I address the term marriage and the legal right to contractual convenience... On the Term Marriage: Marriage in definition other than the traditional consideration can mean (in relevant part): 1) a relationship in which two people have pledged themselves to each other in the manner of a husband and wife, without legal sanction (Random House) 2) any close or intimate association or union (Random House) 3) A union between two persons... (American Heritage) 4) A close union (AHD) 5) A common law marriage (AHD) Thus, one can see that marriage is not exclusively limited to a man and a woman and devoid of all other considerations. Current legal definitions of marriage generally are derived from definitions of marriage in the lexicon that have not been updated to reflect current social considerations. The nature of the change in marriage is no different than the nature of the change in words like dork (penis -> foolish person) or faggot (bundle of sticks -> male homosexual). On Contractual Convenience: As I touched on earlier, if marriage is really a contractual convenience, then the state has no authority to specify the terms of the contract - merely the authority to deny certain social benefits to some contracts. In other words, the state may show preference to certain contracts over others, but not dictate terms. This reading fulfills the resolution. However, if one considers the state to have such a power over private affairs like contracts, then the denial of the right to associate in said contracts to certain members of the citizenry constitutes the creation of a separate class of citizen, a political danger the court has long recognized and struck down. The parties to a marriage do not need the state's permission to accept the obligations of married life - those need no contract. They simply must get the states approval to receive social benefits in accordance with their lifestyle. The denial of these benefits is simply a discrimination infringing on the right to association. ******************************************* I have set forth the following considerations: 1) The right to marry is a fundamental right 2) Homosexuals are suspect class 3) If the right to marry is merely a contractual convenience, the state has no authority there. The first two shift the burden of proof to CON. The third fulfills the resolution. AFFIRMED. ************************************* A note to readers - this was a wonderful debate. PLEASE READ IT BEFORE VOTING. Roy has been a joy to debate on this difficult issue. I wish him much luck.