The Instigator
Pro (for)
8 Points
The Contender
Con (against)
0 Points

Prop 8 is Constitutional

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Post Voting Period
The voting period for this debate has ended.
after 2 votes the winner is...
Voting Style: Open Point System: 7 Point
Started: 6/17/2012 Category: Philosophy
Updated: 4 years ago Status: Post Voting Period
Viewed: 1,626 times Debate No: 21431
Debate Rounds (4)
Comments (15)
Votes (2)





In this debate, I will be the defendant showing how prop 8 is constitutional while the plaintiff will be CON explaining how it violates gay couples civil rights.

I expect CON to argue under this context.


Sounds interesting. I accept. Make your case.
Debate Round No. 1



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. In fact, 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 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.

Procreation and rearing of children is a biologically driven act that happens either by choice or by accident [3]. The state regulates this 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 .

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 [4]. 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. [5]

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 [6].

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.


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.


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 court rules that traditional marriage laws are based on invidious, arbitrary, discrimination under the equal protection clause, then the likely hood of the next generation holding and practicing this idea of marriage in the future would be virtually impossible.

Therefore, since same sex couples are fundamentally different, an important governmental distinction between the two relationships would be reasonable in order to continue advancing this interest. The state uses 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.

[4] .....p.10,11
[5] ...... p.2
[6] Read Gary Gates


ScarletGhost4396 forfeited this round.
Debate Round No. 2


From CON: "My computer was on the fritz last night, and I wasn't able to put this debate through. Do you mind if we do a re-do?"

I am afraid I don't have a desire to redo this since it has already began and there are others who want or wanted to debate this topic waiting in line.

However, I will not hold this forfeiting of the round against CON. So to the audience, DO NOT GIVE MY OPPONENT A CONDUCT VIOLATION ON THIS DEBATE WHEN YOU VOTE.

Lawrence v. Texas:

The Supreme Court did not sanction homosexual sex in Lawrence, rather the Court merely
held that Texas could not criminalize private sexual conduct between consenting adults of the same

"The present case does not involve minors. It does not involve persons
who might be injured or coerced or who are situated in relationships
where consent might not easily be refused. It does not involve public
conduct or prostitution. It does not involve whether the government
MUST GIVE formal recognition to any relationship that homosexual
persons seek to enter."[1]

Lastly, In Lawrence, to justify his vote Kennedy mentioned a case
called Dudgeon v. United Kingdom that dealt with bans on sodomy that
was ruled by the European Union of Charter of human rights where they
also overturned bans on sodomy. The significance of this is that the
European court also decided a gay marriage case and they unanimously
rejected the claim that there was an universal right to gay marriage.
In both cases, the European court distinguished between criminalzing private
relationships and recognizing a relationship within the public institution of marriage, which I think
Kennedy and the rest will also do in this situation.

In addition, this is was not the case in Loving v. Virginia. In Loving, they actually did criminalized interracial marriages as well as denied public access.

Romer v. Evans:

The circumstances that involve prop 8 are nothing like the
Romer case for several reasons. First reason, Prop 8 was proactively
put on the ballot before the decision with a different ballot summary.
It was only afterwards where a biased attorney general wrote
"eliminating rights" on the ballot following the decision. In Romer,
they REACTED to the situation on impulse upon the right being given. However,
When it came to bans on interracial marriage, they directly targeted interracial relationships because it was actually in WRITING.

In addition, regarding the 18,000 marriages being left
in legal limbo. The Yes on 8 campaign along with Eleven attorney
generals from eleven different states begged and pleaded the court to
wait after the election before they made there decision so it would
not come to this. However, they refused to do that even though they
new all along it was going to be on the ballot.

Second, in Romer they took away so many rights that it made gays and lesbians complete strangers to the law. There is no fundamental right to gay marriage and they had the domestic partnerships, The only right that was taken away by prop 8 was the additional right to marry a person of the same sex created by the California supreme court.

Lastly, the intentions of prop 8 was based on a well established compelling state interest that was articulated by virtually every U.S. supreme court in the history of Civil marriage. In Romer, it was considered unprecedented and there was not any basis for it under any scrutiny.



I thank my opponent for his leniancy, and in this debate, I will negate the resolution and argue CON. For this debate, I establish the following parameters:

Constitutional (adj.): loyal to or supporting an established constitution or form of government (Merriam-Webster Dictionary)

Observation 1: The arbiter of constitutionality in the United States is the federal, circuit, and Supreme Court. This debate must hence analyze the constitutionality of Proposition 8 partially through the interpretation of the United States Constitution and include court ruling(s).
Observation 2: The PRO possesses based on the resolution and the functioning of the Constitution 2 burdens to uphold: he must prove that Supreme Court supports or would support the Proposition by Constitutional means and must also prove that Proposition 8 does not violate a single component of the American Constitution nor the form of government it and the Founding Fathers had established for the United States.

Contention 1: Referendums are characteristic of direct democracy and are contradictory to the intention of the establishment of a republic.
The referendum is a known instrument of direct democracy, where the people directly have control over the government and make the decisions. However, as history and the conception of the Constitution will show, the Founding Fathers' intention was not only to establish a representative democracy (a republic, rather than a direct democracy), but their fear was the very idea of a direct democracy. This establishment is shown through the creation of the Electoral College rather than allow for popular vote to be the arbiter of elections.
James Madison (pictured), in particular, was wary of even using the word "democracy" lest Americans confuse its representative form with its direct form; he preferred "republic". So did Benjamin Franklin. Asked by a Philadelphian what form of government the constitution of 1787 had created, he replied: "A republic, if you can keep it." A quick glance across the globus reveals that the relationship between democracy and freedom is quite complicated. There are "illiberal democracies", and free societies that lack democracy. Even within America, democracy can threaten, rather than abet, liberty, as I explain in this week's issue of The Economist. Indeed, the founding fathers would be horrified by the "direct democracy" that two dozen mostly Western states in America practice today. And so am I, who happen to live in one of them, California. Starting with California's infamous "Prop 13", which capped property taxes and also required two-thirds majorities in both houses of the state legislature to raise any future taxes, voter-initiative industries sprang up in various states that now churn out ballot measures as though by conveyor belt. Getting enough signatures to qualify an initiative for the ballot is easy for sponsors with lots of money, who can afford to pay college students a dollar or more for each signature they collect in a mall."

Contention 2: The reasoning for Proposition 8 warrants a violation of the 14th Amendment.
Looking back through my opponent's own evidence [1], the explanation of the ruling for Griswold v. Connecticut explains the conditions at which a violation to the Equal Protection Clause is warranted: " The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that "abstract symmetry" is not demanded by the Fourteenth Amendment." The intentions for voting Yes on Proposition 8 are based on the people, meaning that if I prove even one person voted or would've voted on a discriminatory basis, I prove a violation. This video gives such a person:

Contention 3: Already considered unconstitutional.
The 9th Circuit Court already ruled the measure unconstitutional, making it official.
Debate Round No. 3


Contention 1:

The 10th amendment proves that we do live in a direct democracy:

"The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the PEOPLE."

The U.S. Supreme Court even confirmed that we do live in a
representative and direct democracy under the 10th amendment in a case
called "Pacific States Telephone and Telegraph Company v. Oregon"

So my question to CON is Why would the founders create a way for the popular majority to amend their "state" constitution if they were worried that the majority would take the rights of the minority in the first place?

Contention 2

This was not much of an argument from CON and I know everyone (the audience) does not buy into CON's unarticulate conditional rule. CON must provide evidence that prop 8 was based on animus ONLY through the actions of the law and the people not what some of them privately say individually. Nevertheless, I have a better condition for CON that is more consistent with the debate topic. let me provide some context first.

The history of marriage and the history of racism are two completely different histories. Even if CON wants to start
comparing it to slavery, it would still Beg the Question "What about the history of marriage"?

If we were to take the analogy seriously, we would have to make this conclusion: Every U.S. Supreme Court since the republic that has defined marriage between a man and a woman and/or has said the purpose of marriage is for the continuation of society, essentially, has only been attempting to invidiously and arbitrarily discriminate against
gay people.

So I pose this question to CON: The U.S. supreme court in numerous occasions defined marriage traditionally well before Congress and the defendants have done. Is CON also claiming invidious, arbitrary discrimination against sexual
orientation of those past decisions from the U.S. supreme court?

If my opponent says "no" or "I don't know" to such a claim, then how can he say or know prop 8 was based on animus when prop 8 proponents were only trying to conform to the U.S. Supreme Courts in the past?

Contention 3

I don't think so. Since the U.S. supreme court has not decided this case yet, the jury is still out on prop 8. My arguments are framed accordingly to that fateful day. Until and unless the supreme law of the land decides this case on its constitutional grounds, its definitely not official one way or another.

Conclusion, only one out of three of CON's contention had any substance to it. He also made no effort to challenge my arguments. I think a PRO vote is obvious here. CON had his chance and he blew it as far as I am concerned.


ScarletGhost4396 forfeited this round.
Debate Round No. 4
15 comments have been posted on this debate. Showing 1 through 10 records.
Posted by 16kadams 4 years ago
C2 is actually incredibly weak as it stands, do yeah.

Also it's a co duct violation to add new argunments last round so you can't attack his case XD
Posted by ScarletGhost4396 4 years ago
I would've made my C2 stronger had there been more evidence. Unfortunately, for a place that prides itself on its treasures of information, it is very lackluster in accessible information for that particular contention.
Posted by 16kadams 4 years ago
Yeah, C1 is the strongest point you made.
Posted by ScarletGhost4396 4 years ago
I certainly hope you do Adams. Apparently the Boy Scouts topic didn't interest you at all. lol
Posted by 16kadams 4 years ago
I would debate scartlett on this
Posted by ScarletGhost4396 4 years ago
My computer was on the fritz last night, and I wasn't able to put this debate through. Do you mind if we do a re-do?
Posted by socialpinko 4 years ago
I'm really just interested in your purpose of civil marriage argument.
Posted by kenballer 4 years ago
Well remember Socialpinko, there is a difference between the public policy issue and the constitutional issue for one thing. Another thing to remember is my arguments are confined to the issue of Prop 8. This means I held back some arguments because they were not legally required or relevant in the issue. Lastly, there's more to come the next round.
Posted by socialpinko 4 years ago
Pro's case that he forwarded in R2.
Posted by ScarletGhost4396 4 years ago
@socialpinko Which case?
2 votes have been placed for this debate. Showing 1 through 2 records.
Vote Placed by socialpinko 4 years ago
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Total points awarded:40 
Reasons for voting decision: Forfeiting two non-consecutive rounds automatically loses Con the conduct vote. Con loses arguments as well not only because one round of argumentation was insufficient to refute Pro's points, but even so the forfeit in the fourth round basically drops all of Pro's arguments.
Vote Placed by Cobo 4 years ago
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Reasons for voting decision: Two ffs...