Same-Sex Marriage Should Be Legal in the United States

Allow me to begin by thanking my opponent for his very incisive opening arguments. You'll remember that I said I was going to defend two basic contentions. First, there are no legally tenable reasons to ban same-sex marriage. And secondly, there are good reasons to think that same-sex marriage should be legal. Con has advanced the standard procreation argument against same-sex marriage. I will demonstrate that (1) his argument is false; and (2) even if it were valid, it wouldn't affect the argument I have presented. C1: The right to marriage is a fundamental right. My opponent and I both agree that marriage is a fundamental right. So, before I continue with my main argument, let me go over some of the reasons why the state has an interest in marriage. Linette Scott, the Deputy Director of Health Information & Strategic Planning for the California Department of Public Health, has indicated that the state has many purposes in licensing and fostering marriage. For example, marriage helps to (1) facilitate public order by organizing individuals into cohesive family units; (2) develop a realm of liberty and free decision making by spouses; and (3) create stable households.[1] All of these purposes apply in excelsis to same-sex couples. Consider, for example, what the American Psychological Association has to say on this matter: "research shows that same-sex couples are similar to heterosexual couples in essential ways and that they are as likely as opposite-sex couples to raise mentally healthy, well-adjusted children. Thus, there is no scientific justification for denying marriage equality, when research indicates that marriage provides many important benefits."[2] To use a legal term, same-sex and opposite-sex couples are similarly situated. C2: Gay people qualify as a suspect class. I was actually quite surprised to see that Con has essentially dropped every single argument I've made that classifications based on sexual orientation are suspect. Indeed, he seems to be under the misimpression that "nothing of importance" follows from whether or not gays are a suspect class or from my Due Process and Equal Protection claims. I maintain that he is demonstrably wrong on this point, as evidenced by the legal views of attorneys arguing both for and against same-sex marriage.[3] Even the attorneys arguing against same-sex marriage acknowledge the burden is on them to justify that denying gays and lesbians the right to marriage does not violate the Fourteenth Amendment.[4] Con is clearly mistaken. Essentially, Con is trying to shift the burden of proof. When a fundamental right is being denied, the burden is on the state to justify this discrimination. What's ironic is that Con immediately tries to do this by attempting to show that marriages are heterosexual in nature. In arguing for this position, Con raises what is generally referred to as the procreation argument. I submit that the procreation argument is nonsense upon stilts. I've come to kick out the stilts. Not only is this argument completely unsubstantiated, I think that we have good reasons to reject it. 1. First, the notion that marriage is only between individuals capable of procreating is entirely ad hoc. My opponent presumably supports the right of sterile couples to get married, though they are incapable of producing children. His argument, then, is best summed up in the following way: Only unions whose members, under normal circumstances, are capable of procreation qualify as marriage. Why would anyone want to define marriage in such a contrived, narrow and ad hoc fashion? I'll venture a guess: to prevent homosexuals from marrying. Such a definition stems from a private interest, perhaps a religious interest. It is not a state interest to define marriage in such a manner. 2. Second, the United States Supreme Court has never indicated that procreation is an essential feature of marriage or that marriage is only between a man and a woman. What the Supreme Court has actually said in 14 cases is that the right to marriage is an aspect of the right to liberty, privacy, association and identity.[5] It is my opponent, not I, that is trying to create a revisionist conception of marriage. The fact of the matter is that the state has never inquired into a couple's procreative capacity or intent before issuing a marriage license.[6] In fact, the Supreme Court has indicated that "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse."[7] Lawrence, 539 US at 567. Likewise, the Supreme Court has also mentioned that, completely apart from procreation, choice and privacy are an integral part of the marital union. See Griswold v. Connecticut, 381US at 485-486.[8] Con mentions Skinner v. Oklahoma, but the case isn't about marriage, as Con admits. And the Supreme Court only said that marriage and procreation are fundamental to society. The Supreme Court did not say that marriage was about procreation. 3. Third, as former solicitor general Theodore Olson has argued, if the right to marriage were somehow intractable from an alleged state interest in procreation, the state could take away the right to marriage.[9] According to Olson, the state could say that it no longer has an interest in procreation if the United States became overpopulated and remove the right to marriage from its citizens. 4. Fourth, even if the state has an interest in the procreative component often associated with marriage, such an interest would not by definition exclude non-procreative unions or establish that marriage was exclusively heterosexual in nature. Moreover, allowing gays and lesbians to marry would in no way harm the procreative function of heterosexual marriages or discourage heterosexuals from marrying. 5. Fifth, even if I were to concede that the "responsible procreation" argument is valid, it wouldn't even affect my argument. The procreation argument has only ever passed rational basis review in the courts, and it would certainly not come close to fulfilling the enormous burden imposed by the strict scrutiny standard of judicial review. Under strict scrutiny, my opponent is burdened to show that bans on same-sex marriage are narrowly tailored to a compelling government interest. No matter what way you look at it, the procreation argument fails to prove its conclusion, even under rational basis review. It's completely irrational and procreation has never been recognized by the Supreme Court as being an integral component of what marriage entails. C3: Same-sex marriage bans violate the Equal Protection Clause of the Fourteenth Amendment. I've previously argued that bans on same-sex marriage are in violation of the Equal Protection Clause for at least two different reasons. My opponent has dropped both of these points. C4: Same-sex marriage bans violate the Due Process Clause of the Fourteenth Amendment. I've also argued that bans on same-sex marriage violate the Due Process Clause for at least two different reasons. My opponent has also dropped both of these points. Moreover, bans on same-sex marriage put gays and lesbians into a suspect classification based on sexual orientation. Under the Due Process Clause and Equal Protection Clause, this classification requires strict scrutiny. Con has yet to respond to my argument. | Conclusion | To summarize, depriving gays and lesbians of the ability to marry is in violation of the constitution because doing so involves taking away a fundamental right from a suspect class. As we've seen, the procreation argument that my opponent has outlined is not only fallacious, it's not even relevant to my argument. And yet that's all Con has to offer you in defense of marital discrimination against gays and lesbians. It is for these reasons that same-sex marriage should still be legal in the United States. Sources: http://tinyurl.com...