Prop 8 is Constitutional

Thanks for the debate kenballer. I begin with the understanding that, like race and gender, sexual orientation is not a choice. For example, the overwhelming scientific consensus suggests that sexual orientation is determined biologically. If my opponent wishes to debate this point, he is free to do so, but unless an argument is offered to challenge this view, I will proceed with the view that homosexuality is a form of self-identity that is beyond choice. What's more, in Frontiero v. Richardson the Supreme Court ruled that sexual orientation "bears no relation to ability to perform or contribute to society." This ruling was backed up by a considerable body of sociological and scientific evidence, and was reaffirmed in Romer v. Evans and Lawrence v. Texas, where the Court overturned state regulations that discriminated against gays. The facts presented by these cases suggest sexual orientation is an irrelevant aspect of self-identity for the purposes of law and public policy. Prop 8 denies gays the right to embrace their sexual-identity and choose who they marry. These are fundamental rights protected by the Constitution. As such, Prop 8 violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. When a fundamental right is being denied, the burden is on the state to justify this discrimination. The Equal Protection Clause of the Fourteenth Amendment guarantees equal protection under the law. This means the law must extend the same legal benefits to every U.S. citizen. If marriage is a fundamental right (as Con himself argues), then it must be extended to everyone. And this means that if straight people can get married, so can gay people. The Due Process Clause guarantees "[no State shall] deprive any person of life, liberty, or property, without due process of law." This means that each individual has the liberty to marry the person of their choice, regardless of sexual orientation. Prop 8 clearly violates the Due Process Clause because it deprives gay people the fundamental right to choose who they marry. In Zablocki v. Redhail, the Court invalidated a Wisconsin law that prohibited the right to marriage to any resident who failed to fulfill court-ordered child support obligations. The Court opined that the Wisconsin statute "interfered with decisions to enter into ... marital relationships"; because the Wisconsin statute "absolutely prevented" the desired ritual, it was held to be unconstitutional on Equal Protection grounds. The same logic (not allowing people to enter marital relationships) could be applied to invalidate bans on same-sex marriage. As I said before, the burden is on the state to justify discrimination of gays. My opponent offers two arguments in support of a case for state-sanctioned discrimination: (1) that marriage is heterosexual in nature; and (2) that marriage is reserved for procreation. These arguments are two sides of the same coin, so I will address both of them together. My opponents says the true purpose of marriage is to procreate. But if the purpose of marriage is procreation, individual gay persons can procreate through means such as artificial insemination and surrogacy arrangements. My opponent argues, however, that it is the biological procreative capacity of male-female couples that justifies the unique status of marriage itself. This argument is a non-starter for a number of reasons. First off, it is not clear that the state must sanction discrimination of gays if our species is to procreate and survive. Therefore, if gays are allowed to marry and have families, there is no reason to suppose our species would stop procreating. As such, my opponent has provided a compelling justification gay banning gay marriage that overrides a competing state interest in not discriminating against gays. Second, no couple has ever been required to procreate in order to marry. Sterile couples and old couples can marry. Couples physically able to procreate but who do not want to procreate can marry. This proves that marriage is not essentially about procreation because procreation is not essential to any marriage. My opponent says only allowing fertile couples to marry would be impractical. Actually, it is not as impractical as my opponent seems to think. All it would require is that prospective married couples sign an affidavit stating they are able to procreate and intend to do so. If it is found, after a few years, that a couple has been unable or unwilling to procreate, the marriage could be immediately dissolved. Of course, the fact that this has not been made a law demonstrates that procreation is not essential to marriage. My opponent says that "children from two biological parents fare better in every category of social and psychological measurement." This point is irrelevant because of one simple fact: no serious opponent of gay marriage advocates removing children from gay parents. The facts are simple: gay families exist. As of today, over 1,000,000 children are raised by gay parents. The important thing here is that gay families are not the top-down creations of government bureaucrats or radical visionaries. They are bottom-up facts of life. It is for this reason that no serious supporter of Prop 8 would suggest taking children away from gay parents. Because individual gays have access to procreation (through artificial insemination, for example), it should be evident that the optimal partnership theory is irrelevant for the purposes of law and public policy. I have addressed my opponent's arguments and shown why Prop 8 is unconstitutional. In closing, I'd like to point out that the Supreme Court has never said that the purpose of marriage is procreation. In fact, there are many reasons the state has an interest in marriage that have nothing to do with procreation. For example, marriage provides the married person with a primary caretaker, channels sexual activity into monogamous commitments, stabilizes households, and serves a role signaling familial commitment to one's community. These are all legitimate reasons that the state has an interest in marriage. Prop 8 clearly violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. Because Prop 8 denies citizens access to fundamental rights, the burden is on my opponent to justify state-sanctioned discrimination of gays.