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

Prop 8 is Constitutional

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Voting Style: Open Point System: 7 Point
Started: 7/3/2012 Category: Philosophy
Updated: 4 years ago Status: Post Voting Period
Viewed: 770 times Debate No: 24552
Debate Rounds (4)
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Votes (1)





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.


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/or rear children naturally 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 help 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 inside an 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.


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 because 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 dealing with heterosexual 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.


As I explained before, Our marriage laws are there to shape culture and culture shapes conduct. Allowing infertile heterosexuals to marry 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 couples (or ANY other heterosexual scenario) do not change the definition and challenge the intention of the marriage institution. This is because the definition of marriage (the means) and the purpose of it (the ends) are synonymous.

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


Deathbeforedishonour forfeited this round.
Debate Round No. 2


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]

Also, 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.

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


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. Prop 8 does not only say "Same sex couples are not allowed to get married".

In other words, this is not about whether a law banning same sex marriage is constitutional or whether we should legalize gay marriage based on the supposed effects as a matter of public policy as CON is suggesting. The legal issue that is before us is whether traditional marriage laws are based on invidious, arbitrary, discrimination involving prop 8.


Now, I demonstrated already that gay marriage is not legally a fundamental right and logically cannot be a right. In addition, Sexual orientation has not been ruled to be a suspect or quasi-suspect class and ,thus, rational basis is only required . Nevertheless, Let's pretend for the sake of argument 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. I showed earlier how there's a compelling state interest for traditional marriage laws and addressed the infertile couples objection; now I will show how they are fully narrowly tailored:


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.

In conclusion, 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.

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 the ballot language was changed. 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. In this case, 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.


Deathbeforedishonour forfeited this round.
Debate Round No. 3


Con is a no show. Therefore, vote Pro


Deathbeforedishonour forfeited this round.
Debate Round No. 4
No comments have been posted on this debate.
1 votes has been placed for this debate.
Vote Placed by THE_OPINIONATOR 4 years ago
Agreed with before the debate:Vote Checkmark--0 points
Agreed with after the debate:Vote Checkmark--0 points
Who had better conduct:Vote Checkmark--1 point
Had better spelling and grammar:Vote Checkmark--1 point
Made more convincing arguments:Vote Checkmark--3 points
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Total points awarded:70 
Reasons for voting decision: Considering CON only participated in the first round of this debate that is merly acceptance, all points go to PRO who had a very good argument with strong points.