The Instigator
Farooq
Con (against)
Losing
9 Points
The Contender
xpakamanx
Pro (for)
Winning
15 Points

It is up to the courts to define marriage, not legislators.

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Voting Style: Open Point System: 7 Point
Started: 1/3/2008 Category: Politics
Updated: 9 years ago Status: Voting Period
Viewed: 997 times Debate No: 1320
Debate Rounds (3)
Comments (2)
Votes (8)

 

Farooq

Con

I'd like to first point out that this arguement is not about how marriage should be defined (i.e. eurotraditional, polygamy, same-sex), but who should get to decide.

I have chosen to do the "con" in this arguement and assert that marriage is a state recognition of a relationship. In democracies therefore it is logical to assume that seeing as the state is handing out these certificates of official recognition and the state is really just the will of the populace (or it at least it should be).

The role of judicial branch is to interpret laws and provide justice. But if a populace's majority has already asserted they want a law done a certain way why should any unelected justice have to the right to reverse the will of the people?

Certainly the judicial branch should be able to overrule the majority's will in extrem cases that involve the abuse of power, governmental corruption, or assults on the basic rights and freedoms, but for something like marriage it applies to all people equally, no matter what the definition is, all end up getting the same priveledges.
xpakamanx

Pro

First, I would like to thank my worthy opponent for presenting an outstanding case for the courts not defining marriage. Although I admire the case set before me, I see some problems with it. These problems will be explored within my case construction.

First, the decision is cast in favor of (I suppose I am arguing Pro in this case) the Pro side of the debate and is asserted as such by the con. The third paragraph of my opponents argument begins by addressing what the role of the judicial branch is, "to interpret laws and provide justice". These two concepts are in favor of my position in this debate. When we look to the status quo, marriage is on the books as a recognizable form of a particular relationship status. In this context, the courts are the ones that are interpreting the previous foundations of marriage. By defining marriage, they are in essence interpreting the law, which is exactly what my opponent contends they should be doing. The second part of the duties of the court is to provide justice. To whom are they to provide justice for? The people of course. For them to not interpret the law (their duty) then they are doing an injustice to our society. The times we live in are heated and interpretation must be given. We obviously can't determine what the law should mean as a society, thats why the courts need to step in and do their job.

Furthermore, my opponent implies they are "overturning the majorities will" yet they never prove that our society has come to a majority opinion. Moreover, even if my opponent does prove what the majority will is and that the courts have or would overturn such will, the courts are still necessary to protect the will of the minority. That is one of the key foundations upon which our society was set up, that we look out for the "little guy".

Lastly, my opponent would justify overturning majority will in the face of "abuse of power, governmental corruption, or assaults on the basic rights and freedoms", however there is absolutely no criteria by which these things should be determined. There is a complete lack of weighing mechanisms to determine at what point any of the previous things have happened. A lack of clarity on such a crucial measure is a detriment to our society and to my opponent's justification.

I stand resolved that it is the courts place and right to define marriage, and should be done for the sake of society.
Debate Round No. 1
Farooq

Con

I will commend you on your arguementation skills, but I find many faults in them.

"That is one of the key foundations upon which our society was set up, that we look out for the "little guy"

The basis of democracy is for example, to protect the rights of the minoirties in cases where their basic constitutional rights are assulted, but for all other cases it should be the majority that determines a democratic nation's course. Martial arrangements are solely the government's to give out, and the majority who determines the governt's will should also be incharge of defining it, for what is marriage, but a recongnition from the state of a relationship union?

"Moreover, even if my opponent does prove what the majority will is ..."

No I do not, nor do I intend to. Any decent pollster could however probably tell you what your particualr region beleives whtehr or not marriage should be only eurotraditional, or cater to same-sex and/or polygamists.

In your last rebuttal, you state that you belive the majority is not legally entitled to define marriage and only the courts should be able to do such... but by saying this aren't you implying that you think the citznery has no business meddling in complex legal affiars and only the judicial hierarchy should be consulted? Surely you cannot be assuming that it is better for society if only an unelected elite few shoudl decide a country's ways?
xpakamanx

Pro

My opponants first argument is an analysis of the role of democracy protecting the rights of minorities, however, the key flaw in the argument is that it is grounded in theory not reality. The theory being that we only look out for the rights of minorities when their basic constitutional rights are assaulted, however, this doesn't assume that we consider their needs any other time. My opponent concedes this by stating "for all other cases it should be the majority that determines a democratic nation's course". This simply is not the case, in our society we look out for the minority even when basic constitutional rights aren't being violated. For example, schools that offer bilingual education (although my opponent will most likely point out that this is a state action and not a federal action, that doesn't mitigate the argument). We look out for the minority population in all instances.

Second, my opponent claims to never intend to prove what majority will is, this is pretty crucial in this debate and is their burden. THe crux of my opponents arguments is that the court is meddling in the will of the people, yet he can't prove that without showing directly what is the will of the people. How can anyone say to any certainty that my opponent is right and the will of the people is being overruled when there is no definative example of what their will is? To not show this is to dodge the burden that is inherrent in my opponents argument.

To address the last bit of my opponents argument, I believe what I meant through my statements was misunderstood. It is my assertion that the populous can't define marriage. The primary reason (and again drawing upon my opponents opening remarks) it is the PRIMARY DUTY of the judiciary to interpret laws, which includes definitions and clarity within legislation. Second, when I say "We obviously can't determine what the law should mean as a society," there are two key implications to note here. First, the lack of providing a clear outline of what the majority will is. I contend that we as a society are torn on the issue of marriage in our society and can't come to a cohesive opinion. My opponent has yet to provide any evidence to the contrary. With this being said my opponents argument, albeit on face is a good argument, simply can't hold water in today's debate.

Second to this, my opponent frames his view of the judiciary in a very negative light, with really no justification. It is implicit in my opponents statement(s) that the judiciary 1. being appointed and not elected is bad. THis has no bearing on today's debate for two reasons. First, we are debating who should define marriage, not the merits of the method by which these bodies are created. Second, my opponent has offered no support to show that appointing judges is a bad thing. That is another debate for another time that I would GLADLY engage in, however, it has no bearing in today's debate.The second idea implicit in my opponents argument is that the judiciary on whole is bad. The only way that you might be able to grant this to my opponent is if my opponent showed what the will of the people is, but that was addressed above. Second, this really has no bearing on the debate. If my opponent wins this debate then one could make the argument that in this one action the judiciary is bad, however, to imply they are just flat out bad without any proof 1. isn't an argument and 2. a logical fallacy.
Debate Round No. 2
Farooq

Con

Your allegation that I am not defining the majority's will is correct, but irrelevent. What the majority beleives should be classified as marriage (eurotradtional, same-sex and/or polygamy) is not a concrete thing set in stone (for peoples opinions are known to change over time) and of course differ regionally (on can certainly assert that martial values in Spain, Afghanistan, and Brazil are all quite different). To observe majority's opionion on what marriage should be defined as polls should be effective at deteriming this, or referedum/legislators.

You assail my arguements in your first paragrpah about how the judical branches in parlmatary-style democracies are destiend to to protect the rights of minorities, which is true but really has no bearing on this debate. Marriage however isn't a personal action it is by definition the approval of a union by the establisment (in this case the government). If a minority opinoated groups believe they are not getting fairly protected, they should know that is because absolute martial recongnition is not a basic legal requirement in the constitution of most democratic nations, nor is there a tradtional one set in stone. Thus, resolved, seeing as marriage's defintions in not ingrained in most democratic constituions, it is subjective to the times and up to legislators to determine.

As for appointing judges, I am not attacking this, I am merely saying that they are there to interpret existing laws, and should laways play second fiddle to legislators that see fit to alter things. I rest my case.
xpakamanx

Pro

Since this is the last chance to write at all on this debate, I would like to thank my opponent for his excellent argumentation skills. This has been a fun debate to participate in and look forward to many more just like it.

OK, ultimately there are two arguments that are left up to debate by the opposition. The first argument is the will of the people and the second argument being that of the role of the judiciary. I will address both these arguments in order and finish with some final thoughts/things to consider when evaluating this debate.

First, my opponent concedes that they haven't shown what the majority "will" (or opinion) is in this debate. My opponent asserts that this is irrelevant to the debate. To quote my opponents argument in the first round: "But if a populace's majority has already asserted they want a law done a certain way why should any unelected justice have to the right to reverse the will of the people?". This is the primary support offered by the opposition for why the judiciary should have no role in defining marriage. At the point where my opponent can not show you one single piece of data defining what the majority opinion (will) is then the opposition simply can not win this debate. For my opponent to make such an outlandish assertion and not back it up with any hard evidence or even reason/logic is a primary flaw that assumes victory for my position in the debate.

The second, and final, argument that is left standing in this debate is the role of the judiciary. I again take the judges back to the opening argument presented by my opponent: "The role of judicial branch is to interpret laws and provide justice.". For my opponent to grant this is a grave mistake. To break this down into the most simplistic terms possible here's why I win on this argument alone:
1. My opposition states that the judiciary has no role in defining marriage.
2. My opposition also states that it is a primary role of their office to interpret laws.
3. At the point that my opponent concedes that marriage is the legal recognition of a relationship (which he does in all 3 rounds) then he is granting marriage has a legal statute behind it.

Keeping those three things in mind:

The judicial branch is well within their duties to interpret a legal recognition of a relationship, they are well within their rights to define such a relationship. One of the primary duties of the judiciary is to define and interpret laws, one of which would be marriage as granted by the opposition.

If that hasn't persuaded you enough there are a few key things I would like you to keep in mind as you evaluate this debate:

1. My opponent has never once argued against marriage already having a legal status (thus making the definition of marriage within the functions of the judiciary). At the point where my opponent doesn't argue against that then it is conceded to my position and provides a fatal blow.

2. To assert that the judicial branch is/would overturn the majority will and to not provide any support (be it hard evidence or logic) is not justification for a vote for the con side, only for the pro.
Debate Round No. 3
2 comments have been posted on this debate. Showing 1 through 2 records.
Posted by mjg283 9 years ago
mjg283
I think there is a fundamental misunderstanding here about what "interpreting the law" means. When a judge interprets the meaning of a statute, the first thing he does is determine if the plain and ordinary meaning of the words is clear. If the meaning is ambiguous, the judge examines the legislative history to determine the intended meaning of any ambiguous words. If the meaning is still unclear, only THEN does the judge engage in actually writing his own definition of a word, and this is usually done with an eye toward expressing the legislature's goal in passing the law at issue.

The last thing a judge should ever do is redefine a word or concept based purely on his own moral belief as to what is just without regard for either the plain meaning of the word or the legislature's intent. When the judge does that, he is effectively RE-WRITING the statute and has cast himself in the role of a legislator (and usually an unelected one at that).

In most, if not all, state statutes, the meaning of marriage is impeccably clear and is usually explicitly defined to mean the union of one man and one woman. So any judge that simply redefines marriage based on his own feeling as to what that word should mean is simply not doing his job.

The real issue, however, which was not addressed by either of the debaters, is whether constitutional concepts such as substantive due process and equal protection under the law render the plain meaning of marriage unconstitutional.
Posted by lstultz2 9 years ago
lstultz2
I can see both positives and negatives in your reasonings. However, the idea of marriage is not a government controlled idea as marriage was created through religion. I am not some religious nut, however if you want to be honest about this you have to look to the truth. Religion, and more to the point, christianity, developed marriage. It is the idea set out in the bible as one man and one woman. I realize in todays culture it is much more lax when it comes to these issues, and quite frankly I am indifferent either way.

Luke
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Vote Placed by claypigeon 9 years ago
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Vote Placed by LandonWalsh 9 years ago
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Vote Placed by Guardian27 9 years ago
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Vote Placed by Farooq 9 years ago
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Vote Placed by xpakamanx 9 years ago
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