Legalizing Gay Marriage is Overall Bad Public Policy

I will begin by making my case. In the following round, I will refute the case of my opponent. 1) Good and Bad Public Policy This is a debate about public policy, which may be defined as "the principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good." [1] 654 F. Supp. 2d 400, 405 (W.D.N.C. 2009). What constitutes good public policy then should (1) incentivize that which is in keeping with the furtherance of public good and (2) disincentivize that which may harm the public or undercut public good. Advancing the public good may be achieved by maximizing the freedom of each individual to the extent that it does not conflict with the freedom of other individuals’ respective enjoyment of an equivalent degree of freedom, in keeping with the Rawlsian concept of justice as fairness, where fairness is understood to be maximized liberty for the individual to make choices that no not harm the public good. For harms to the public good to be legitimate, they must be demonstrable and observable, rather than theoretical and existential where individual liberty is regulated. For example, if public policy should bar a practice or behavior, that practice or behavior must be directly connected with harm greater than the good achieved by maximized freedom.2) Marriage is a Practice Exercised in by Individuals Many conceptions of marriage have existed in varying cultures, distinguished by varying norms and traditions throughout human history. For example, girls who had reached early reproductive age (sometimes as young as 12) were once considered fit for marriage. In other societies, parents arranged marriages for their children. In the United States, interracial marriage was in many areas once illegal. Marriages have occurred for reasons of strategic alliance (such as among historical royal families in Europe), with or without the consent of those to be married, in accordances with contrasting religious, civil or social practices. Justice Sandra Day O’Connor articulated in Troxel v. Granville, 530 U.S. 57 (2000), that demographic changes of the past century make it difficult to speak of an average American family.” Id. at 63. Similarly, those same demographic changes have equally impacted the institution of marrige in America. Among the many possible functions of marriage include the creation and rearing of a family, the loving devotion to ones spouse, the strategic transfer of wealth and others. Today, many functions of marriage co-exist among each other, albeit with varying social stigmas [2]. Because of multifaceted components of, and changes to the institution of marriage in different places and times, it makes little sense to argue that any single “consequence” is necessarily the proper function OR to conclude that any social practice or norm is an objectively more appropriate framework through which marriage may be conceived. 3) Marriage and Society To the extent that the respective marriages of individuals has the potential to negatively society as a whole, it is appropriate that marriage may be regulated to the extent that any infringement of liberty of any individual may not exceed the infringement of the liberty of another individual. It is in this way that where society regulates marriage, individuals who choose to enter into marriages not receive unequal treatment under the law. Where individuals are treated unequally, then public policy has failed to uphold that most basic tenant of social justice: equality under the law. Courtney Joslin, of UC Davis observes that “other than the gender requirements for entrance that still exist in most (but not all) states, states have repealed or struck down all or almost all other laws that distinguish between men’s and women’s roles and legal rights and responsibilities in marriage.” [3] In modern society, men and women are regarded as equal both socially and legally. If men and women are equal, it makes little sense to regulate individual choice on the basis of gender. Article 7 of the Universal Declaration of Human Rights states that "All are equal before the law and are entitled without any discrimination to equal protection of the law." [4] 4) The Impact of Denying the Opportunity to Marry to Individuals In the United States, The Due Process clauses of the fifth and fourteenth amendments state that no “person . . . [shall] be deprived of life, liberty, or property, without due process of law” by government. [5] Unequal treatment under the law occurs where the prospective choices of an individual are unduly restricted more than the choices of another in pursuit of the same legal objective. Because marriage is a legal contract in the context of public policy, where individuals do not enjoy commensurate freedom to marry, they are unduly discriminated against and not afforded equal treatment under the law. Michael S. Wald of the Stanford School of Law explained in December, 1999 that “marriage confers unique legal rights and obligations that can significantly enhance the lives of married couples and their children. These rights and obligations enable married couples to organize their lives in ways that maximize their joint well-being, assuring them some degree of economic protection if things go badly.” [6] Because of the individual benefits marriage affords, he argues that that society benefits from recognition of same sex couples because of the impact that socially legitimized commitment has on parents, children and society. In Conclusion Marriage is a complex and diverse institution which has seen constant evolution in keeping with the evolving standards of morality that society has witnessed across the trajectory of time. The very fact that marriage has changed so dynamically over time is indicative of the fact that no single conception of function of marriage is sufficient to account for the diverse and varied role it plays in the lives of those who choose to enter into it, or society itself. While our conceptions of marriage expand, our commitment to equality under the law remains constant. Because denying some individuals the opportunity to freely enter into marriage with other individuals is discriminates on the basis of gender to that end, it is in keeping with the tenants of good public policy to abrogate such a restriction. Sources: [1] Herndon v. TIAA-CREF Individual & Institutional Servs., LLC, 654 F. Supp. 2d 400, 405 (W.D.N.C. 2009) [2] http://www.bbc.co.uk... [3] Human Rights, Volume 36, Number 3, Summer 2009. American Bar Association. http://papers.ssrn.com... [4] http://www.un.org... [5] http://www.law.cornell.edu... [6] http://papers.ssrn.com...