The Instigator
kenballer
Pro (for)
Winning
3 Points
The Contender
Foxgguy2001
Con (against)
Losing
0 Points

Gay marriage is not a civil right

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Post Voting Period
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after 1 vote the winner is...
kenballer
Voting Style: Open Point System: 7 Point
Started: 6/9/2012 Category: Society
Updated: 4 years ago Status: Post Voting Period
Viewed: 830 times Debate No: 20870
Debate Rounds (5)
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Votes (1)

 

kenballer

Pro

FIRST ROUND WILL JUST BE FOR ACCEPTANCE AND RULES ONLY

In this debate, I will explain how gay marriage is not a civil right as part of my argument.

Then, If my opponent attempts to provide arguments for gay marriage to shift the burden of proof on me, I will show how its detrimental to society to redefine the purpose of marriage to counter it.
Foxgguy2001

Con

I accept this debate.
Debate Round No. 1
kenballer

Pro

THE DUE PROCESS CLAUSE

In Murphy v. Ramsey (1885) the U.S. Supreme Court stated:

"[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to rank as one of the coordinate state of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one MAN and one WOMAN in the holy state of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of the reverent morality which is the source of all beneficent progress in social and political improvement."

This quote is an example of why the U.S. Supreme Court has always defined marriage to be between a man and a woman for the continuation of society and never did they say that the fundamental right to marry included same sex marriage or even plural marriage. In fact, in both cases, the Supreme Court rejected the existence of such definitions or rights in the past and said there is no fundamental right to gay marriage .

After the Loving decision, The U.S. Supreme Court in Baker v. Nelson in 1972 regarding the issue of Same sex marriage endorsed a Minnesota supreme court decision. The case will show you that the same court in Loving v Virginia not only distinguished same sex marriage from interracial marriage, but established it as a right that does not exist under the constitution and never did. They also rejected and refuted many of the other same arguments gay activists make today [1]:

"The institution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner V. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942), which invalidated Oklahoma's Habitual Criminal Sterilization Act on equal protection grounds, stated in part: "Marriage and procreation are fundamental to the very existence and survival of the race." This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for RESTRUCTURING it by judicial LEGISLATION."

As you can see, Marriage wouldn't be "fundamental" to the "existence" and "survival" of humanity if it was completely delinked from procreation or had nothing to do with reproductive potential. There are also plenty of state and federal courts that mention Baker as a U.S. SCOTUS ruling [2]. Marriage is the regulation of procreation and rearing of children. This has been deemed the most compelling of ALL compelling state interests by the U.S. supreme court several more times. Let me explain precisely why this is the case:

The Purpose of CIVIL Marriage:

The traditional view of marriage is based on the anatomical possibility or "natural teleology of the body" where only a man and a woman, and only two people, not three, can generate a child and raise the child through the natural complimentary element of both genders.

The state regulates this biologically driven act by encouraging procreation and child-rearing to take place within a marriage. This is done in order to make sure they do not procreate and rear children in an unstable environment if they end up producing a family either by choice or by accident [3].

The Means to Achieve this Purpose:

The state uses the traditional idea of marriage ,as a means to achieve this purpose, in order to encourage heterosexual couples to obtain a marriage license. Then, the state issues marriage licenses in order to reinforce this meaning of marriage and ,as a result, provide legal and social support for their relationships. There are two theories about the definition of marriage that potentially helps to achieve this purpose:

A. The Responsible Procreation Theory

The responsible procreation theory involves establishing family stablity where the state encourages heterosexual couples to procreate and/or rear their children in a environment that is best situated to raise children. Family stability is about how many transitions in the environment the child may experience during the child development process.

There is empirical evidence that supports this theory. In terms of the selection process, Studies show that people, who cohabit, compared to those who don't, have less traditional ideals or views of marriage. Then, according to other studies, they would not only be more likely to cohabit but more likely to divorce from prior cohabitation. [4]

B. The Optimal partnership theory

The optimal partnership theory involves establishing family structure where the state promotes the ideal partnership between two biological married parents. Family structure is about who the child is being raised with during the child development process.

There is also empirical evidence supporting this theory. Almost Every study demonstrates that children from two biological parents fare better in every category of social and psychological measurement. They are less likely to be poor, to exhibit behavioral problems, to struggle in school etc. than children in any other living arrangement [5].

Therefore, it does not matter whether the cause of the good child outcomes from couples is based on the idea of traditional marriage that people believe in or the physical experience of marriage. It would still be warranted for the state to use and promote a traditonal notion of marriage to ensure a stable home for children.

WHAT ABOUT INFERTILE COUPLES?

The Fundamental right to marry:

Since Marriage between a man and a woman has been held to be a fundamental right, a law excluding infertile heterosexual couples would be constitutionally unenforceable. The state couldn't survive strict scrutiny since it would be overinclusive and not narrowly tailored. There are two more reasons why they allow the infertile to marry along with any other scenario regarding heterosexuals couples.

Responsible Procreation:

In order to actually know that couples are in fact infertile, the state would have to resort to intrusive fertility tests in order to establish that they are unable to have children. However, therapy and the availability of long-term fertility may reverse the prognosis (even in post menopausal women) making it medically impossible to fully establish infertility. Not to mention, the state would have to check almost every single couple that wants a marriage license. This clearly would take a large amount of resources to accomplish. Thus, it's costly, impractical, and unconstitutional. The law rightly assumes a presumption of reproductive and child rearing potential on the part of heterosexual couples.

Marriage:

As stated before, Our marriage laws are there to shape culture and culture shapes conduct. Allowing infertile heterosexuals does not attempt to take away the law's ability to recruit and influence the culture of heterosexuals who are "fertile" to make sure they create and/or raise their offspring's in a stable environment. Moreover, the state cannot promote responsible procreation and rearing of children without referencing and acknowledging the traditional definition of marriage because it's the only union that can perform this particular action.

Therefore, infertile heterosexuals do not change the definition nor challenge the intention of the institution of marriage. This is because the definition of marriage (the means) and the purpose of it (the ends) are synonymous.

Next round, I will get to the equal protection clause

[1] http://www.cas.umt.edu...
[2] http://en.wikipedia.org...
[3] http://www.ca8.uscourts.gov... ...... page 10,11
[4] http://eprints.qut.edu.au... ..........page 2
[5] http://www.urban.org... Gates
Foxgguy2001

Con

Civil Rights


“rights to personal liberty established by the 13th and 14th Amendments to the U.S. constitution and certain Congressional acts, especially as applied to an individual or a minority group.”[1]

AMENDMENT XIV


“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[2]

Homosexuals are certainly denied equal privileges, and cannot file taxes jointly, among a host of others denied them.

N.J. Supreme Court oral arguments

Justice Barry T. Albin: “And that's what cuts against the tradition argument that you make, because the state recognizes that gay couples can raise children, adopt children, send them to school, in our communities as police officers, firefighters, teachers, every profession, every trade... and after giving that particular recognition, then you say, but the tradition that still maintains or should maintain and should not be touched even under equal protection argument is that they cannot marry. Don't all of those things undercut your tradition argument?”

she also stated:

But to say that the elected branches have spoken to an issue, does not in any way help us... who have now before us the constitutional issue that we must decide. We cannot evade the issue that has been placed before us. The elected branches of Government's in the Southern States before 1954 had been spoken, if the U.S. Supreme Court took that as the article of faith, Brown v. Board of Education would have never been decided.”[3]

My opponent asserts that it is not a civil right as the purpose of marriage is to procreate, or raise children. Justice Barry very notably states that we’ve augmented tradition in every profession and trade to recognize that homosexuals performance is equal to that of heterosexuals.

Further, there are over 2 million orphans nationwide[4] that are looking to be adopted into loving families, whether it be two fathers, or two mothers. Studies have shown that same-sex parents are nearly indiscernible from mixed-sex marriages aside from gender.

“Since the 1970s, it has become increasingly clear that it is family processes (such as the quality of
parenting, the psychosocial well-being of parents, the quality of and satisfaction with relationships
within the family, and the level of co-operation and harmony between parents) that contribute to
determining children’s well-being and ‘outcomes’, rather than family structures, per se, such as the
number, gender, sexuality and co-habitation status of parents (e.g., see Chan, Brookes, Raboy and
Patterson, 1998; Chan, Raboy & Patterson, 1998; Clarke-Stewart, Vandell, McCartney, Owen, & Booth,
2000; Featherstone, 2003; Flood, 2003; Golombok, 2000; Kelly, 2000, 2003; McIntosh, 2003; McNair,
2004; Millbank, 2003; Patterson, 1995a, 1998, 2001; Patterson, Fulcher & Wainright, 2002; SavinWilliams & Esterberg, 2000; Silverstein & Auerbach, 1999; Tasker, 2005; Vandewater & Lansford, 1998;
Wainright, Russell & Patterson, 2004; Walker & McGraw, 2000; Wise, 2003). As Walker and McGraw
(2000, p. 563) conclude in relation to the frequently made assertion that all children ‘need’ or will ‘do
better’ with the involvement of a father (as well as a mother), “although there might be an ideological
basis to this assumption, it lacks empirical support”. Similarly, as Biblarz and Stacey (2006) summarise,
“studies have not ‘shown that the ideal is where a child is raised by their own married mother and
father’. No evidence supports the view that the ideal gender mix of parents is a man and a woman” (p.
43).”[5]

My opponents source number 5, in regards to the optimal partnership theory is erroneous, and I urge you to disregard the argument until clarification is given. The study I have sourced above shall serve as evidence to counter the optimal partnership theory.

Marriage

Nowhere in the legal definition of marriage is it explicitly stated that the institution exists for the purpose of procreation, in any state.[6] To say that marriage laws are in place to shape culture and conduct is similar to saying that the government supports drunk driving as a result of ending alcohol prohibition.

I await my opponent's arguments on the potential detriment gay marriage poses to society, especially given the mention of the number of orphan children nationwide stated above, and overpopulation concerns.

[1] http://dictionary.reference.com...
[2] http://www.law.cornell.edu...
[3] http://en.wikipedia.org...
[4] http://www.unicef.org...
[5] http://www.psychology.org.au...
[6] http://www.clgs.org...


Debate Round No. 2
kenballer

Pro

California law's Education code:

51890. (a) For the purposes of this chapter, "comprehensive health education programs" are defined as all educational programs offered in kindergarten and grades 1 to 12, inclusive, in the public school system, including in-class and out-of-class activities designed to ensure that:

(D) Family health and child development, including the LEGAL and
financial aspects and responsibilities of marriage and parenthood.

EQUAL PROTECTION CLAUSE

Let me make something very clear here first. The U.S supreme court case law is the supreme law of the land and , As I explained before, they have always defined marriage between one man and one woman for responsible procreation and rearing of children.

The point is this is not about whether a law banning same sex marriage is constitutional. The legal issue that is before us is whether traditional marriage laws are based on invidious, arbitrary, discrimination.

Discrimination: " The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application. By denying states the ability to discriminate, the equal protection clause of the Constitution is crucial to the protection of civil rights.

Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right." [1]

1. Sex Equality

Bans on interracial marriage were about the segregation of protected classes ,which has been deemed in the Brown decision to be another form of discrimination. When it comes to the Sexes, The Supreme Court has never ruled integration to be a form of discrimination. Thus, there is no discrimination between the sexes because men and woman can equally marry someone of the opposite sex.

2. Sexual Orientation Equality

Traditional marriage laws do not violate the equal protection clause because providing a separate institution like civil unions to same sex couples has been deemed constitutional on basis of sex (with some conditions of course). For example, We have separate but equal situations for men and women that permeate our country ranging from restrooms, the military, prisons, sport teams, and even separate but equal public schools. We have this even though women are a minority that historically have been discriminated against.

In a case called Vorcheimer v. Philadelphia school District, the Supreme Court ruled, that "Separate" is essentially "Equal". As long as each gender equally has a choice in going to both schools for both genders and that, interests in creating separateness based on the biological differences grounded in sex and GENDER are a legitimate state interests.[2]

In United States v. Virginia , the court agreed with this rationale as well:

"Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation."[3]"it is not the 'exclusion of women' that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any -- much less a comparable -- institution for women... It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber."

Obviously, this is deemed constitutional because there is a fundamental difference between race and sex. This is why we no longer have bans on interracial marriage or have Jim Crow laws but still have and always accepted apartheid for the sexes and define marriage between one man and one woman. In order to show that discrimination would still exist between opposite sex and same sex couples, CON would need to provide a recent U.S. supreme court case decided after the 1972 Baker case showing how gay marriage is a fundamental right.

JUSTICE UNDER THE LAW

Now, if they were being discriminated against, the existence of an infringing liberty or equal right would not automatically make a law unconstitutional. However, Let's pretend for the sake of argument we are discriminating on same sex couples or gay individuals. I will even pretend that they are a suspect class ,which would require passing strict scrutiny from my side. Even if this is the case, my arguments would still pass the strict scrutiny test and justify the discrimination. I showed earlier how there's a compelling state interest for traditional marriage laws; now I will show how they are fully narrowly tailored:

GAY MARRIAGE INTERFERES WITH THIS PURPOSE

My argument, in a nutshell against gay marriage is this, where the possibility of natural children is nil in law, the meaning of marriage is nil. If marriage is allowed between members of the same sex, then the concept of marriage has been emptied of content except to ask whether the parties love each other. There would be no reason to have public recognition of marriage. Let me explain precisely how and why:

If the state were to call same sex unions a marriage in conjunction with opposite sex couples, the law would publicly declare that, from now on, Marriage can be understood apart from responsible procreation and natural parenthood.

Since the well-being of children would no longer be a component of the concept of marriage, the social stigma within choices (like divorce, cohabitation, fatherlessness etc.), which serves as a natural deterrent, would decay and its effect would basically be eliminated. This is because marriage ends up ONLY becoming a matter of choice between consenting adults who want to express their love a certain way.

THE CLAIM THAT GAY MARRIAGE IS A CIVIL RIGHT

Not only would the state no longer be able to encourage incoming generations of heterosexuals to create stable environments, as I previously explained, but it would end up discouraging them as well.

If the traditional notion of marriage, which is defined as banning gay marriage by gay marriage advocates, continues to be compared or labeled as a form of slavery/bigotry akin to racism/homophobia and the state enforces this, then the likely hood of the next generation holding and practicing this idea of marriage in the future would be virtually impossible.

Remember, the studies very clearly show that people, who cohabit, compared to those who don't, have less traditional ideals or views of marriage. Then, according to other studies, they would not only be more likely to cohabit but more likely to divorce from prior cohabitation.

Therefore, since same sex couples are not similarly situated, an important governmental distinction between the two relationships would be reasonable in order to continue advancing this interest in using the traditional definition to encourage procreation and rearing of children to take place within a marriage to each generation while the state can encourage homosexuals to adopt and stay together with civil unions.

JUSTICE is applied EQUALLY in each case.

Now, the burden of proof is shifted onto CON. I have established the "is" portion by showing that gay marriage "is" not a civil right. CON must successfully provide a compelling state reason for how redefining the purpose of marriage to include same sex couples benefits society as a whole. In the next round, I may explain what we "ought" to do going forward regarding public policy and legislation. However, since the burden of proof is now on CON, I will only show how gay so-called marriage is bad public policy once CON meets his burden. Then, we can weigh the costs and benefits of this new law.

[1] http://www.law.cornell.edu...
[2] http://law.justia.com...
[3] http://en.wikipedia.org...
Foxgguy2001

Con

Foxgguy2001 forfeited this round.
Debate Round No. 3
kenballer

Pro

I want to add something that I may not have been clear about before. The nature of my arguments can apply anywhere in the world because I don't just say that gay marriage is not a civil right merely based on what the government and courts have randomly declared. I explain the moral and philosophical aspects behind it. For example, from the Universal Declaration of Human rights:

"Article 16
1.Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a FAMILY. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

3.The FAMILY is the NATURAL and fundamental group unit of society and is entitled to protection by society and the State. "[1]

(If you noticed, it never said without any limitation due to GENDER and the ARTIFICIAL family)

Therefore, Gay marriage is not a civil right because the purpose of civil marriage involves the procreation and rearing of children. Its something that only a man and woman can do. This is why civil marriage is a civil human right. In addition, since this is what civil marriage "is", it logically follows that gay marriage cannot be an equal right as well.

CON'S CONTENTION:

"To say that marriage laws are in place to shape culture and conduct is similar to saying that the government supports drunk driving as a result of ending alcohol prohibition."

let me clear up the argument I made before. Our marriage laws regulate opposite-sex relationships by establishing a baseline definition of who is married. As a by-product, it provides a shared framework of concepts such as adultery, remarriage, divorce, etc. to be understood. Moreover, We come to know how these choices and situations can be detrimental for families as a result.

Although, as a secondary effect, marriage does provide incentives and disincentives;
the idea of marriage and the other social institutions that are associated with it do not require people to use them by the state as CON is implying. Primarily, it is the very existence and understanding of these social institutions, the social exchange, and the government's reinforcement of these social rituals that combine to make it seem reasonable and even natural for people to apply these concepts.

For example, The mere appearance of a green/ red traffic signals helps us know when to make the right choice to drive so drivers won't harm themselves and others. This is done to maintain order in the public arena. Is this also a situation where the state is imposing someone's morality? I think not.

CON'S SECOND CONTENTION:

"No evidence supports the view that the ideal gender mix of parents is a man and a woman"

Well first off, I was not trying to argue that straight parents are better than gay parents in the first place. I was just stating that this is part of the purpose of marriage and it does not refute the claim that two biological married parents are the ideal partnerships for heterosexuals. This is because step parents married has been shown to be harmful and less desirable. So this is why the state's interest is a combination of encouraging couples to procreate inside a marriage and rear children naturally, which is two biological married parents.

GAY SO-CALLED MARRIAGE IS DETRIMENTAL TO SOCIETY

In the previous rounds, My arguments established the "is" portion by showing that gay marriage "is" not a civil right. Now, we are at the "ought" portion regarding public policy and legislation. I will explain why it should not be made into a civil right as part of why its not a civil right. Civil rights are about fairness and justice. They govern behavior to make sure we have order[2]. The concept of gay marriage does not provide fairness nor is just and it potentially creates disorder if we consider making it into a Civil right.

LONG TERM EFFECTS OF REDEFINING MARRIAGE

The Social ramifications:

Based on the arguments and studies I mentioned in Round 1&2 involving the promotion of non-traditional views of marriage and discouraging traditional views of marriage as well; it logically follows that vulnerable future generations, will be programmed to formulate choices (like divorce, fatherlessness, etc) that have the potential to harm their own family and society in general as a result.

Legal ramifications:

The problems with redefining marriage also arise in same-sex divorce and parental laws. Just as there are a set of entry conditions for marriage there would be a set of exit provisions as well. Douglas Allen can better discuss the potential impact of same sex divorce on straight relationships and parental consent laws in his book called "An economic assessment of same-sex marriage laws". [3]

THE IMMEDIATE EFFECTS OF REDEFINING MARRIAGE

This new law impinges on people's freedoms and their capacity to live their life with freedom of conscience and to transmit their values to their own children. Americans will either be forced to accept something like this and reject their own beliefs that reflect objective (not subjective) reality in the process or else live in fear of a secular government that will pander to the likes of intolerant gay activists who will undoubtedly impose their convoluted notion of equality and human rights. Nevertheless, these immediate effects of redefining marriage will also give us more reasons to believe the long term effects are inevitable:

Schools:

In 2006, the Parkers and Wirthlins filed a federal Civil Rights lawsuit to force the schools to notify parents and allow them to opt-out their elementary-school children when homosexual-related subjects were taught. The federal judges dismissed the case and ruled that because same-sex marriage is legal in Massachusetts, the school actually had a duty to normalize homosexual marriage to children, and that schools have no obligation to notify parents or let them opt-out their children.

Media:

"The Boston Globe newspaper, regularly does feature stories and news stories portraying homosexual "married" couples where regular married couples would normally be used. Also, the newspaper advice columns now deal with homosexual "marriage" issues, and how to properly accept it."

Businesses:

The state of California attempted to force E Harmony, which is a private company run by a Christian, to accommodate gay individuals' preferences when it comes to dating services in California.

The state of Massachusetts forced Catholic Charities to accommodate homosexual married couples to adopt children the same as normal couples. Catholic Charities decided to abandon handling adoptions rather than go against their deep held beliefs.

In the state of Vermont, ACLU Files Lawsuit Against Innkeepers Who Refused to Host SS Ceremony Reception.

Now, I have explained how gay marriage is not a civil right based on the "is" and the "ought". CON must provide a compelling state reason for how redefining the purpose of marriage benefits society as a whole. However, even if he was successful in providing an argument for gay marriage, the benefits would have to outweigh or at least equal the costs for gay marriage to be considered a civil right as its defined.

[1] http://en.wikipedia.org...
[2] http://en.wikipedia.org...
[3] http://www.law.harvard.edu...
Foxgguy2001

Con

Foxgguy2001 forfeited this round.
Debate Round No. 4
kenballer

Pro

Since CON has forfeited twice, he concedes this debate. Therefore, I urge a PRO vote.
Foxgguy2001

Con

I concur with Pro's assesment. Vote Pro.

I appologize to my opponent and audience for not entering timely arguements for the subject at hand.
Debate Round No. 5
No comments have been posted on this debate.
1 votes has been placed for this debate.
Vote Placed by 16kadams 4 years ago
16kadams
kenballerFoxgguy2001Tied
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Total points awarded:30 
Reasons for voting decision: Forfeit