Same-Sex Marriage Should Be Legal in the United States

It's been a pleasure debating with Freeman. In closing, I'd like to provide a general summary of how this debate has progressed, followed by brief responses to claims made by Pro in the previous round. Pro's Arguments Recall that Pro's initial argument was that same-sex marriage should be legal because of three reasons: 1. Marriage is a fundamental right. 2. Homosexuals are considered a suspect class. 3. Traditional marriage policy violates the Equal Protection and Due Process clauses By way of response, my counterarguments focused on attacking (3) as being circular. Before one can say that a particular marriage policy violates any Constitutional norms, one must first settle the prior issue of what marriage is. Only after this has been established will any of the above points have any force. To argue therefore that same-sex marriage should be legalized because same-sex marriage is a fundamental right is to beg the question. The very issue at hand is whether or not there is a fundamental right to same sex marriage -- it is over the definition of marriage. One cannot therefore simply assume that there is such a right. Thus, Pro's initial argument was patently circular -- regardless of what points he later brought up. By way of defense, Pro appealed to mainly to court precedent. This, however, is inherently problematic. Recall that the resolution of the debate was that "Same-Sex Marriage Should Be Legal in the United States." The term should indicates that this is a debate about how the law should be structured. It is of no use, therefore, to appeal solely to existing legal precedent to settle the question, for the validity of court precedent is the very issue at hand. The debate then is primarily factual -- a more basic issue that precendent is itself based on. In defending against the charge of circularity, Pro appealed to the testimony of prominent legal scholars to absolve himself of the charge. Unfortunately, Pro never tells us why his arguments are not circular -- he only refers to other scholars. This does not show why the charge of circularity is wrong and is therefore unhelpful. Indeed this cuts both ways -- there are prominent legal scholars on the other side who point out that appeals to constitutional norms are question begging. I cited Robert P. George, the McCormick Professor of Jurisprudence at Princeton University and a former fellow of the United States Supreme Court. [1] The charge of circularity remains. What about (1) and (2)? I pointed out that I agreed with (1), but that I disagreed over what the term "marriage" meant. Thus, to show that (1) extends to same-sex couples, Pro had to show why marriage should be redefined to include same-sex couples. This was never done. Contention (2) was utterly irrelevant, and was contingent on what marriage is. For if marriage is heterosexual by nature, then homosexuals would not be allowed to marry even if they were a suspect class because they are not being denied anything they deserve. (2) is thus also question-begging. Ironically, Pro's falls victim to his own definition of an appeal to authority when dismissing my social science claims. Since when was David Boies, an attorney, an expert on sociology who is qualified to dismiss my claims as "junk science"? The State's Interest in Marriage Why does the government even care about marriage? What is it about marriage that demands legal recognition? For the proponent of SSM, marriage can be nothing more than an emotional union of persons. But if marriage is a mere emotional union of persons, then what business does the state have in intruding into the private lives of its citizens by extending legal recognition to their relationships? The state has no business in this domain of our private lives. So then what are the state's interests? Pro lists several. These include faciliating public order as well as creating stable households and an environment for decision making. Unfortunately, these are vague and unhelpful criteria. These things are certainly good, but what justifies extending legal recognition to them? That something is good doesn't mean we should enshrine it into law. Moreover, there are many things that faciliate public order, create stable households, and the like. Indeed, by that criteria, friendsips could count as marriages, for by recognizing them as marriages we would facilitate public order by grouping them into families (and thus spouses) which would foster an atmosphere of liberty, decision making, and stability between the individuals. Barring this specific example, a host of in principle parody arguments (Including polygamy and incest) are avaliable. Since Pro's criteria could be used to support literally any type of relationship, it is inadequate. By way of response, Pro simply asserts that the aforementioned parodies would not satisfy his criteria. But an assertion is not an argument. Hence, Pro has not adequately justified the state's interest in marriage. The Procreation Argument: Unbloodied and Unbowed After pointing out the flaws in Pro's argument, I then proceeded to give a positive argument against same-sex marriage that was based of the procreative-act. Pro's responses are unsatisfactory. In brief:1. Pro charges my position with pushing a private interest that the state does not hold. This is not true. Barring legal precendent (Which I did reference), I argued both philosophically and politically that unless marriage is based upon notions of procreation, the state has reason to be in the marriage business to begin with. There is no reason for the state to extend legal recognition to mere emotional unions, considering that this domain of our private life is beyond the purview of government. 2. Pro continually brings up legal precedent. But again, this debate is over how the law should be. Precedent alone cannot answer this question. One cannot appeal to the law when the debate is over how the law itself should be structured. The debate is therefore extra-legal. On this point, Pro has failed to provide sufficient justification.3. Pro seems to misunderstand my response to his overpopulation argument. In such an instance, the state may no longer have an interest in procreative effects, but the state would still maintain an interest in the proper procreative framework. His argument here is therefore a red herring. 4. Whether or not same-sex marriages would harm (In the sense of destabalizing) heterosexual marriages has no bearing on this case. The debate is not over what marriage is. Even if same-sex marriage do not harm heterosexual marriages (Which I do not grant), that has nothing to do with whether or not same-sex marriage should be legal. Many things, if enacted, wouldn't harm traditional marrriage -- it doesn't mean we should enact them. There is no connection here between harm and legality and hence this point does not bolster his case.5. One of Pro's main arguments was that strict scrutiny was necessary in ruling on same-sex marriage. As I showed, however, this is simply false. As Monte Neil Stewart has shown, virtually all judges who have ruled on this matter have used the rational basis test, which is the lightest level of scrutiny. Moreover, the level of scrutiny used must first depend on what the relevant marriage facts are. Thus to say that strict scrutiny is applicable here is to put the cart before the horse. Thus, even supposing that points (1)-(4) of my argument fails, Pro's argument still as a whole fails as traditional marriage can easily pass the rational basis test. [2] On this point, Pro's only response was to appeal to the authority of Eric Holder. However, this does not tell me what is wrong with the argument. It is only a dismissal.Space limitations prohibit me from going into an indepth response to Pro's arguments, but I think it has been conclusively demonstrated that same-sex marriage should not be legal. Pro's arguments are inherently question-begging. I urge a vote for Con. Sources: http://tinyurl.com...;