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

Pro introduced the concept of a "suspect class" into the debate. The definition is given by Wikipedia http://en.wikipedia.org.... A "suspect class" is generally what I call a Constitutionally-protected class. What it means is that if there is discrimination on the basis of race, religion, national origin, or alienage then a very high standard of justification must be provided to justify the discrimination. Discrimination may be allowed, but a very strong case must be made. Discrimination against a quasi-suspect class is subject to lesser scrutiny. The main example is gender. Discrimination is allowed, but must be proved justified according to standards of "intermediate scrutiny." All other issues of equal protection are judged according to "rational basis." Thus the military can discriminate against people who are too tall or too short because it passes the test of "rational basis." Height is an immutable characteristic, but nonetheless "rational basis" applies. Gender is immutable, but "quasi-suspect" applies. The Courts have declared homosexuality a rational basis class. The Wikipedia article provides the references. There no question that sexual preference is a rational basis class. Pro goes on to argue that the other criteria for "suspect class" applies to homosexuals, and therefore the Courts have erred. There are three faults in that argument. (1) The criteria given are minimum criteria. There may be, and almost certainly are, other classes who meet those criteria, but are not suspect classes. For example, "convicted felons" seems to meet the criteria. (2) Only "alienation" has been added by the Courts to the classes explicitly protected by the Constitution. If there it is a Court error, it is in adding more classes, without constitutional foundation, rather than having too few classes. (3) The criteria of "strict scrutiny," even if applied, would not make denial of gay marriage untenable. Recall that advocates of the Equal Rights Amendment were adamant that it would not require shared rest rooms or shared locker rooms. Clearly they felt that discrimination could pass the test of strict scrutiny. Pro argues, "However, I argue that the right to marry is a form of specific association that the state simply has a contract for. ... . it sounds silly to say that there is not a right to a vitally important social institution." There are many vitally important social institutions for which the state has no contract. For example, the parent-child relationship is vitally important, yet no government license is required to become a parent. Churches are vitally important institutions, yet no government license is required to join a church. In Sweden, government-licensed marriages have dwindled, but marriage as a social institution has not. In tribal societies, there are no government contracts, but the social institutions of marriage are if anything more important than in industrial societies. Pro fails to recognize the difference between a scrap of government paper and a social institution. This is a debate about legalities. I stipulated at the outset that if the government tried to prohibit associations, that would be a violation of rights. However, there is nothing remotely resembling a right to a government certificate. Pro argues, "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. ... Under this reading, the resolution is fulfilled because the position of interfering in the right to privacy is not legally tenable." Pro's argument depends upon switching meanings of the word "marriage." The language of the resolution, saying "legally tenable position ... right to marry" is clearly talking about state-issued marriage certificates. Moreover, Pro reinforced that meaning up until the final round, when he decided to switch his meaning. All of the controversy surrounds whether gays must be given exactly the same certificate with the name "marriage license," and that is what we have been discussing. I indeed asserted that lawmakers get to define the terms used in laws. Pro objects "However, this suggests that the political majority may define legal terms. This is of course a silly notion." One of the most fundamental principles of law and government is that citizens must be able to know what laws mean. That is only possibility if the meaning stays with the law and does not change. If a citizen goes to Court and can be told by a judge, "I've just decided that "up" now means "down," so now you are guilty. Too bad you thought it mean "up."..." Pro asserts, "The desire of the majority to maintain the traditional meaning of marriage stems from some notion of morality or the "sanctity of marriage.".." Pro offers no proof of that statement, it is false, and it no more than slandering his opponents. People have a strong natural opposition to changing law by changing definitions. If you want the law changed, get a new law passed. Beyond that, there is strong belief that while gays ought to be entitled to many rights, they are not in every way identical to heterosexuals, so that adopting all of marriage law en masse is suspect. California has a strong record of of approving gay rights and civil union laws, yet they rejected the attempt to change the traditional definition of marriage. Pro states, "However, gender lacks an immutable characteristic, as one can undergo surgeries that legally change gender. One cannot remove the genetic coding for homosexuality." Pro contradicts himself, previously asserting that Michael Jackson remained of the same race despite some racial characteristics changing, because his genes didn't change. Now he asserts that changing gender characteristics changes gender despite genes not being changed. He was right the first time, genetic determination is immutable. (Note that as gene replacement technology matures, we will lose immutable classes. By the way, why is "being an illegal alien" an immutable class? It can be changed by either becoming legal or by leaving. Clear, the Court is suffering from acute rationalization poisoning.) "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." Pro gave no case where it was test and uphold. It's never been tested, so we have no data. Sexual preference is not a suspect class, nor even a quasi-suspect class (like gender), so separate but equal is legally tenable. Pro states, "This statement is the fallacy of appeal to improper authority. These men [Obama, McCain, Bush, Clinton] are not experts on the issues of gay rights and homosexual genetic tendencies (or, arguably, legal considerations relevant to the case at hand)." This debate is entirely about what is "legally tenable." It is the job of Presidents and presidential candidates to know what is legally tenable. The Presidents had the entire expertise of the Justice Department to provide the best legal advice. The candidates had the very best legal advice in both Parties. Of course, experts may disagree, but when you get a unanimous opinion from across the political spectrum and in both Parties, that is as expert an opinion as one could ever hope for. Moreover, this was an important issue, so we can be sure that it was carefully considered by the most expert legal minds. A good debate. I believe we agreed that government certificates are not human rights, and in the current context, that is amazing progress.