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

1. I provided five arguments [1. (a), (b), (c), (d), (e)] as to why marriage of any kind is not a basic right, but rather a contractual convenience afforded by government to citizens. Pro offered no counter arguments, appearing to agree by saying "This right is not necessarily a basic right." 2. Pro argues that it is nonetheless derivable from basic rights. He argues that there is a right to freedom of association. I certainly agree that when it comes to adult matters of sexuality, there is indeed such a right of freedom of association. I stipulated that in my opening argument saying, "any law that attempts to prevent homosexuals from forming and maintaining same-sex relationships would be a violation of their rights." A law that prohibited heterosexuals from forming relations would similarly be a rights violation. That is not at issue here. What is being asserted by Pro's resolution is that there is a right by homosexuals to have a standardized contract written by the state, that the contract must in every detail be identical to the heterosexual contract, and that the contract must be called "marriage." Having agreed that marriage is a contractual convenience, he must show that a matter of convenience derives from freedom of association. Compare the situation to business laws related to owning property in a partnership. Suppose Pro and I agree to chip in and buy a podium so that we can better debate each other. There is no official government license for joint podium ownership. In some places it invokes a set of laws related to joint ownership, even though we signed nothing. If there is no direct law then disputes are settled by common law in the judicial system. Having a contract is most convenient, having an applicable law is less convenient, and relying on common is least convenient. If there were a law that prevented joint ownership of a podium, that would be a violation of freedom of association. The rest are matters of convenience. No one would argue that there is a legal right to a standard government-issued contract for joint podium ownership. The right is to be able do as one wishes, not to have a certain form of facilitation from the government. For that reason, Pro's argument that gay marriage is required in law fails. Pro makes the same error in asserting that gay marriage follows from a right of privacy, saying "It has long been held that there is a right to privacy. This stems from the decision in Griswold v. Connecticut recognizing the right of the people to not have "government in the bedroom." Griswold held that a ban on selling contraceptives was unconstitutional due to rights of privacy. The privacy right was never in the Constitution, it was invented by the Court for that case. The Court gave the Connecticut legislature a way to get rid of a stupid law without having some legislators having to offend Catholic voters. Even today, the Court invokes a privacy right when it wants it and ignores it when it doesn't want it. There were nearly concurrent Court decisions a couple of years ago declaring sodomy laws unconstitutional and upholding laws against selling adult toys. In any case, a privacy right, which I will stipulate as a basic right, does not imply that a marriage license identical to heterosexual marriage and named "marriage" must be issued to homosexuals, it only prevents government from making private behavior illegal. Pro argues that "The right to marry is indeed a fundamental right. Consider if the US refused to grant marriage licenses to anyone. There would be a terrible uproar in the streets." An uproar does not establish a fundamental right. There is an uproar when a city refuses to build a new sports stadium; that doesn't make stadiums a fundamental right. Fundamental rights are asserted contrary to majority opinion. I am asserting that the majority has a legal right to maintain the traditional meaning of the word "marriage" and to offer an independent government contract for gay relationships. Pro is making arguments unrelated to the issue of the resolution. Pro further argues "If the right to equal protection under the law on basis of race or ethnicity is a fundamental right, surely the basis of sexual preference merits the same consideration. It is no different to refuse a marriage license because someone is black than because someone is gay." The difference is that the U.S. Constitution, by Amendment, establishes race as a class afforded equal protection. Sexual preference is not a protected class. Neither is gender. In a case in New York City, a landlord was charged with illegal discrimination because he refused to rent to a Black woman lawyer. The landlord showed that he had many Black tenants and never discriminated on grounds of race. However, he never rented to lawyers. Lawyers are not a protected class. so the landlord won his case. Pro asserts "it has been held for 50 years that separate is inherently not equal. Thus, having equal "civil unions" does not satisfy the requirements of equal protection." Pro errs in assuming that "separate but equal" has achieved legal status as a universal legal principle. It was a specific remedy for racial discrimination in public schools. (A wrong remedy, since it destroyed neighborhood schools, but that's another debate.) We still have separate but equal restrooms and locker rooms for men and women, because gender is not a Constitutionally-protected class. This has been amply tested in the Courts. Note that had the Equal Rights Amendment passed (for gender), advocates argued that separate-but-equal would nonetheless be a legally tenable position. Until such time as sexual preference is established as Constitutionally protected class, discrimination in law is legal. Note that in California, there were some laws allowing basically everyone except heterosexuals from entering into certain types of civil union. Perfectly legal; it works both ways. I didn't say there was anything wrong with gay couples raising children, I only asserted that the legal details regarding which parent obtains custody in a divorce might be different. All I asserting is that genetic differences sometimes have legally valid consequences and sometimes they do not. Soldiers cannot be too tall or too short for valid reasons having to do with equipment design. That does not mean that the genetic differences between tall and short may be reflected in say, voting laws. 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. The Con position on this issue is identical to that of Barack Obama, George Bush, John McCain, and Bill Clinton. All agree that there is a legally tenable position for denying homosexuals the right to marry. All agree that there should be gay civil unions with substantially equal rights, but that "marriage" should be preserved in its traditional sense. None of these people would take such a position if it were not legally tenable. The resolution should therefore fail. I challenge Pro to make arguments that relate to the issue of the debate: use of the word "marriage" and a legal right to contractual convenience.