There is no rational basis for banning gay marriage.

== Overview == First, luckily for me (since the rest of the debate is going to be kind of messy), Pro drops my final argument from last round: that there is a net benefit to holding that bans on gay marriage pass RBT because such a holding would force the Supreme Court (specifically the swing-voter: Justice Kennedy) to rest the Court's decision on intermediate scrutiny and declare sexual orientation to be a suspect classification [if the Court wanted to require states to recognize same-sex marriages]. There is thus a net benefit to voting for the Con interpretation of RBT, i.e. broader Constitutional protections would be provided to gay people in the longer term (because they would get intermediate scrutiny of any law that treats them differently). This alone is a sufficient reason to vote Con because at the very least, my reading of RBT in this context is a plausible reading (given that many lower courts have agreed with it), and so this argument -- that the Supreme Court should rest on intermediate scrutiny, not RBT -- provides a policy reason to prefer my interpretation. Vote Con for this reason alone [note: don't punish me for Pro failing to understand that I was running this as a net benefit to voting Con; he's the one who made the debate so short -- only 2 rounds]. Second, Pro continues to misinterpret RBT, which I'll explain below. However, keep in mind that any doubts are resolved against Pro. Under RBT, the BOP is always on the person challenging the law, and the law is accorded a "strong presumption of validity." Therefore, Pro bears the BOP in this debate, and any doubts are resolved in Con's favor. == Rebuttal == R1) Pro says we are debating bans on gay marriage, not marriage itself. However, in states that "ban" gay marriage, the state has simply chosen to extend the right to marry only to unions between "one man and one woman." The Supreme Court generally treats cases differently where rights are granted to everyone -- then taken away from only one group -- from cases where rights are only conferred on a single group from the outset (see Romer). We are in the latter scenario (which is treated as less suspect) because marriage has simply only been extended to straight people, rather than having been granted to everyone and then taken away from gay people. R2) I largely agree with Pro here, but he's missing a key nuance. I know because I made the same mistake when recently writing an amicus brief to be filed in one of the same-sex marriage cases that were supposed to reach the Supreme Court (but got denied certification this term). My supervising attorney got really mad at me for misconstruing the RBT standard in the same way my opponent is doing (by requiring the defender of the law to prove that excluding gay people from marriage causes straight people to use contraceptives more often). My opponent cites four cases to prove that the Supreme Court looks at whether the exclusion itself has a rational purpose. I agree. But the Supreme Court does not require that the exclusion *further* the government's asserted purpose because there are two possible ways to justify a challenged exclusion: either (A) the exclusion itself accomplishes some policy purpose, *or* (B) the policy purpose behind the law does not justify extending the law to the excluded group. While my opponent points out cases (e.g. Cleburne and Moreno) that involved Scenario A arguments, there are also cases that deal with Scenario B. For example, the Supreme court case Railway Express v. New York involved a New York law prohibiting advertisements on the side of trucks. [1] However, New York provided an exception: the owner of the truck could advertise his or her own products (but not someone else's). Someone challenged the *exception* (not the original law) and said the exception should apply to everyone, or not at all. The Court reasoned that the exception was based on a legitimate desire to accommodate property owners, and such a rationale did not extend to non-owners. My argument follows from Railway Express, where the rationale for granting an exception to owners did not justify extending the exception to non-owners. Similarly, the rationale (that I offer) for extending marriage only to straight people (encouraging responsible procreation) does not justify extending it to gay people (because they cannot have unplanned pregnancies). We are in Scenario B: where the asserted policy purpose underlying the law does not justify extending the law to the excluded group. My opponent keeps trying to make me prove Scenario A: that the exclusion itself accomplishes the asserted purpose. But that's not the only option available to me. I'll give a second example. In Dandridge v. Williams, Maryland had put a cap on welfare, so that people earning more than $250 a month did not qualify. [2] A family who earned barely more than the cap challenged the law. The Supreme Court held that the justification for the law was to limit welfare only to the very needy. While it might have been irrational to exclude people earning $260 per month, the government still had a legitimate purpose in enacting the law. Again, we are in Scenario B: the law's purpose was to have some cap on welfare eligibility, and this purpose was incompatible with extending welfare to other groups of people. If the Court had required proof under Scenario A -- i.e. that it was rational to include people earning $249 per month in welfare but exclude people earning $251 per month -- the welfare eligibility requirement would have failed RBT. But the Court said it passed RBT (under Scenario B). Dandridge also stands for the proposition that there is no entitlement to a government benefit. Just because one group gets a benefit does not mean that another group is automatically entitled to it. So just because straight people get marriage (to encourage them to procreate responsibly), that doesn't mean that gay people are also entitled to the same benefit (under RBT). Dandridge provides the basic rationale for Scenario B: that just because the state passes a law to benefit only one group does not mean we can presume that the state was trying to harm the excluded groups. So, in light of this nuance that Pro has missed, I essentially have two responses to his R2: (1) Under Scenario B, all I have to show is that the "legitimate purpose" that I advance justifies extending marriage only to straight people. And that the same purpose does not justify extending marriage to gay people. Since I have proven that it is rational to believe that the benefits of marriage (e.g. tax incentives) will channel young people into marriages, which will in turn encourage more responsible procreation, I have demonstrated a justification that applies to straight people, but not gay people (because gay people cannot have unplanned pregnancies). I have therefore demonstrated a non-discriminatory rationale for the distinction drawn between gay and straight people under marriage laws. That's all I have to do to prove that the law survives RBT: prove a non-discriminatory purpose for the distinction that is drawn (see Romer). (2) Alternatively, if my opponent wants to force me to provide a "Scenario A" type rationale, I will: saving tax revenue. The primary benefit that married people get from the government is large tax breaks. These tax breaks deprive the state of quite a bit of potential revenue. If the theoretical justification for marriage is to encourage responsible procreation, then the "legitimate justification" for excluding gay people from marriage is to avoid wasting tax revenue to subsidize the relationships of a group of people who cannot naturally procreate. R3) I answered this above. Pro just tries once again to force my argument into Scenario A. R4) Again, Pro just tries to make me argue Scenario A. Pro also -- once again -- demands evidence that marriage reduces unplanned pregnancies, even though looking to *any* evidence is explicitly forbidden under RBT, and the court must rely only on the state's "rational speculation, unsupported by evidence or empirical data." Pro also makes this new argument that the law punishes gay couples for being "responsible." However, that's not the case. Gay couples can't have unplanned pregnancies even if they have wild, irresponsible, unprotected sex with each other. This argument is a non-starter. So the real question is: has Pro proven that "encouraging responsible procreation" is not a legitimate purpose or that it is wholly irrational to think marriage and its attendant incentives encourage *some* straight couples to engage in more responsible procreation (either by discouraging premarital sex -- e.g. teenage pregnancy -- or by encouraging family planning -- e.g. using the pill until one is ready to have kids). I have shown that it is not illogical to think that marriage provides an *incentive* for more responsible procreation. Under RBT, you (as the judge) are required to take my "rational speculation" at face value. You can't look to statistics or require that I prove that marriage *actually* does any of the things I claim (see Levald). Under this ridiculously permissive standard -- that scholars have called "minimal scrutiny in theory and virtually none in fact" -- I win. Any other outcome would be you (as judges) trying to judge the "wisdom or fairness" of every law, but the Court explained in Heller that it was no longer willing to do so since it was worried about a repeat of the Lochner era. To avoid too much judicial intervention in the political process, the Court has explicitly said (in Heller) that RBT will often uphold "unfair" laws. This is the price we must pay for separation of powers. [1] http://law2.umkc.edu... [2] 397 U.S. 471 (1970)