The Instigator
Freeman
Pro (for)
Winning
41 Points
The Contender
Lightkeeper
Con (against)
Losing
34 Points

Proposition 8 is unconstitutional.

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Voting Style: Open Point System: 7 Point
Started: 11/5/2010 Category: Politics
Updated: 6 years ago Status: Voting Period
Viewed: 3,077 times Debate No: 13569
Debate Rounds (3)
Comments (30)
Votes (15)

 

Freeman

Pro

Proposition 8, the ballot initiative that eliminated same sex marriage in California, is unconstitutional because it violates the Equal Protection Clause and the Due Process Clause of the federal constitution. Furthermore, it causes irreparable harm to the gay citizens of California and the children that they raise. In addition, the discriminatory nature of this proposition is not just made evident by its effects on society, but also by the people and groups who went out of their way to support it. In 2008, a group of eccentric and philistine religious charlatans, with the aid of volunteers, money and mystical underwear, managed to put this measure over the top and into California's constitution. [1] Simply put, Proposition 8 was passed by religious leaders and voters who opposed gay marriage because it was not in accordance with their various faiths. Nevertheless, religious concerns and private moral disapproval of something are neither a compelling nor rational basis for discriminating against any group of people, including gays and lesbians.

====> A Treatise on The Nature of Religion and Law: Why Proposition 8 Violates The United States' Constitution <====

C1: Proposition 8 unnecessarily harms a vulnerable minority group.

Proposition 8 needlessly harms gay people and the children that they raise. To reaffirm this point, Anne Peplau, a relationship psychologist at UCLA, has argued that individuals gain physical, psychological and social benefits from being married. [2] Accordingly, governmental measures that eliminate marriage for gay citizens also deny them these benefits. Likewise, Ilan H. Meyer, an associate professor of clinical socio-medical sciences at Columbia University, has described how Proposition 8 undermines the mental health of gays and lesbians by imposing a "structural stigma" on their relationships. [3] According to Dr. Meyer, "Marriage is a common, socially approved goal." As such, he argues that Proposition 8 stigmatizes gay relationships by stating that they are unworthy of the status of marriage. In other words, Proposition 8 serves no other purpose than to delegitimize gay relationships and treat them as inferior to heterosexual unions. For these reasons, it should be obvious that Proposition 8 unjustifiably harms gay people and their children.

Additionally, leading experts from the World's top medical, psychological and scientific institutions all concur that Proposition 8 negatively impacts various social structures. Included in these groups are the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the American Psychological Association, the American Psychoanalytic Association, the National Association of Social Workers, the Child Welfare League of America, the North American Council on Adoptable Children and the Canadian Psychological Association, all of whom support same sex marriage. [4] Indeed, in the absence of any evidence that contradicts the mainstream social science on this subject, ballot initiatives that ban gay marriage across the United States are little more than invidious and arbitrary forms of discrimination.

Moreover, recent advances in psychology and sociology have exposed the rather dubious link between sexual orientation and parental quality. In particular, the American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers have stated that, "There is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage.... Empirical research has consistently shown that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents.... [I]f their parents are allowed to marry, the children of same-sex couples will benefit not only from the legal stability and other familial benefits that marriage provides, but also from elimination of state-sponsored stigmatization of their families." [5] Clearly, if one is being impartial about the evidence, one must conclude that gay parents do not differ in any significant way from their heterosexual counterparts.

C2: Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

The basis for the supposed justification of Proposition 8 is grounded on unsupported religious beliefs about sexuality and gender roles that do not advance any sort of accompanying secular purpose. As if to prove this point, the Catholic Cardinal of Los Angeles Roger Mahony released a statement that said, "Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that marriage was instituted by God for the specific purpose of carrying out God's plan for the world and human society. Period." [6] And even though some proponents of this measure have decided to frame their opposition to same sex marriage in decidedly secular terms, the religious underpinnings of their opposition could not be any clearer. Surely, Proposition 8 does nothing more than advance the private religious view that heterosexual couples are superior to homosexual couples. However, as the evidence shows, straight couples are not superior to gay couples; instead, they are equal, as indicated by every available metric. Consequently, Proposition 8 violates the equal protection clause of the 14th amendment by unfairly disadvantaging gay people and by failing to treat them equally.

C3: Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

By unfairly denying gay citizens the liberty to marry the person of their choice, Proposition 8 is in clear violation of the due process clause of the 14th amendment. In Loving V. Virginia, the United States Supreme Court ruled that marriage is a fundamental right. [7] Thus, all citizens in the United States are constitutionally entitled to marry the person of their choice unless the state has a compelling reason to prevent those marriages. However, Proposition 8 simply does not survive the strict scrutiny standard of judicial review, the most rigorous form of judicial review. [8] Undeniably, Proposition 8 does not advance any compelling government interest, and it is deleterious to several very essential government interests - namely, the proliferation of societal health and child welfare. Proposition 8 is, therefore, in violation of the due process clause, since it unreasonably deprives gay citizens of their fundamental right to marry.

::Conclusion::

As the record clearly shows, there are no valid reasons, religious or otherwise, that can justify the discrimination that Proposition 8 forces onto the citizens of California. Indeed, upon close scrutiny, the arguments used to support this measure amount to little more than shallow smokescreens of sophistry purposefully designed to conceal an unspoken religious animus towards gays and lesbians. But animus is neither a rational nor acceptable basis for singling out a certain group and treating them differently under the law. Because Proposition 8 fails to advance any legitimate government interest with its discrimination, and because it interferes with California's constitutional obligation to treat its citizens equally in issuing marriage licenses, the only reasonable conclusion which can be drawn is that Proposition 8 is unconstitutional.

Sources and Guidelines: http://www.debate.org...
Lightkeeper

Con

At the outset, I thank my opponent for posting this debate. My position is that Proposition 8 does not breach the Constitution of the USA, as alleged by my opponent.

The basis on which the US Constitution's protections have been applied to minorities can best be outlined by reference to the decision in HERNANDEZ v. TEXAS, 347 U.S. 475 (1954). I quote from that judgment:

*(b) When the existence of a distinct class is demonstrated, and it is shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. P. 478.*

http://caselaw.lp.findlaw.com...

It would seem from the above ruling that in order to be granted protection as a minority group, the group must be treated differently (and worse) than other groups.

But Proposition 8 has in any way resulted in a differential treatment of homosexuals. Proposition 8 merely defines marriage as a union between a man and a woman (nb, a definition that has existed for thousands of years). The result of this is that a person cannot enter into a legal marriage in California unless that marriage is to a person of the opposite sex. This limitation applies equally to everyone, without regard to his or her sexual orientation, race, religion or gender (although admittedly marriage laws do discriminate against people on the basis of their marital status; a married person can't get married!). Had the Proposition stipulated that homosexuals are excluded from marriage, my opponent might have a case. But that's not the stipulation. As the Proposition stands, no matter what gender you are, what nationality you are, what religion you are, what sexuality you are, you can only legally marry a person of the opposite sex. It is in fact a STERLING example of equal treatment by law.

Now my opponent might argue that only a homosexual would marry a person of the same sex (as Judge Walker himself said in the case of Perry v Schwarzenegger). But is that really the case? Homosexuals are people who are sexually and/or romantically attracted to persons of the same sex. But neither element is a prerequisite for marriage. People who are sexually inactive (or indeed asexual altogether) are still able to marry (and do marry) as are people who are not in love with each other. Ironically, this very argument is often used by proponents of same-sex marriage. Being able to reproduce is not a requisite for marriage. Infertile (as well as impotent or emotionally unattached) people are able to marry. And they do, for a variety of reasons. Since marriage is not dependent on fertility, sexual attraction or romantic involvement, there is no merit in any claim that prohibiting everyone from marrying people of the same gender constitutes a differential treatment of those who are sexually or emotionally involved with persons of the same sex (ie homosexuals).

And now let us have some Slippery Slope Fun.

Traditionally and historically marriage has almost invariably been a union between a man and a woman. What proponents of same-sex marriage are seeking is a redefinition of marriage, based only on choice. But then, if a person's choice regarding marriage is to be so much respected that we should allow it to redefine marriage then why not allow polygamy? What about incestual marriages? What about marriages between a human and an animal? There's nothing wrong with marrying an animal, by the way. If it makes someone happy, why shouldn't they? I'm sure that there are a great many people in this world who are very distressed (and feel stigmatised) by the fact that they can't exercise their choice to tie the knot with their favourite pet. Why should Joe have to feel isolated and stigmatised because his choice to marry his cat is not given legal status? What about marrying one's mom? Every boy wants to, at some stage. Some probably would if they had not been talked out of it in the first place. After all, it's illegal. But why? If we're going to change the millenia-old meaning of marriage for the sake of same-sex marriage then why don't we be honest with ourselves and go all the way? Just allow anyone to marry whoever (or whatever) they want. Would my opponent by opposed to this course?

Now, my last paragraph might sound like a joke. But is it? After all, we know the legal position. You can't discriminate against a class unless the exclusion is based on some reasonable classification. So what's the reasonable classification that would justify us in failing to legally recognise a marriage between a man and his mother or a woman and her favourite labradore?

Now, if my opponent is happy to agree to the foregoing, we might reach settlement and ask the voters to vote for us equally (that would be my Proposition). However, I have a feeling that he will not be happy to agree to the foregoing. I would like to know why.
Debate Round No. 1
Freeman

Pro

Allow me to begin by thanking Lightkeeper for taking time out of his day to debate with me. Clearly, there seems to be some considerable distance between us. And while I do appreciate his attempt to show that Proposition 8 is constitutional, I cannot help pointing out that his central argument is patently fallacious. The fact that a law treats every person the same via discrimination does not mean that it is constitutional. Imagine, for example, there was a law that prevented everyone from marrying a person with the same hair color. It should be obvious that this law would apply equally to every person. It should also be obvious that this law would be properly insane and unconstitutional. The government does not have an interest in preventing two blondes that fall in love from marrying each other. Obviously, the fact that a law prima facie applies to all people equally does not mean that it is reasonable. I'll get into this more later; but for now, it is sufficient to recognize that a law can only be constitutional if it survives rational basis scrutiny. And as I will demonstrate, Proposition 8 most certainly does not survive rational basis scrutiny.

C1: Proposition 8 unnecessarily harms a vulnerable minority group.

I'm somewhat disappointed that my interlocutor has failed to tackle the scientific evidence I have presented in my opening case. I almost feel as though he didn't actually read my last round. Previously, I wrote at length to outline how Proposition 8 negatively impacts gay people and their families, and my opponent hasn't said anything in response. Lest this section be deemed unimportant to constitutional law, there is a reason I decided to dedicate three paragraphs to arguing that Proposition 8 causes unnecessary harm to gay people and their families. Given the damage that is incurred by Proposition 8, it becomes very difficult, indeed, to demonstrate how this measure furthers a legitimate government interest.

Furthermore, there is a long and sordid history of discrimination against gay individuals that illustrates how they are vulnerable to mistreatment. For example, Abrahamic laws set forth in Leviticus have prescribed the death penalty for homosexuals. [1] It would not be untrue to say that throughout much of history, revealing yourself to be a homosexual would entail putting your life on the line. Even in modern day Uganda, homophobia is so rampant and endemic in the society that homosexuals are constantly in jeopardy of being beaten and murdered by a disorderedly mob. [2] On top of this, federal and local laws have often been used to discriminate against gays in the workplace and elsewhere. [3] Consequently, gay people do reasonably qualify as a "suspect class". [4] As Judge Walker of Perry v. Schwarzenegger has stipulated, gay people are the exact type of group that the strict scrutiny form of judicial review was meant to protect. [5] Therefore, Proposition 8 can only be properly supported if it can be found to have a rational basis by furthering a justifiable government interest.

C2: Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

My opponent has claimed that Proposition 8 is constitutional because heterosexuals and homosexuals are both unable to marry someone of the opposite sex. Indeed, he goes on to call this arbitrary division a "STERLING example of equal treatment by law." This assertion is completely unwarranted and illogical, as I've pointed out earlier. Honestly, who does my opponent think he is going to fool? Proposition 8 was struck down by Judge Walker on the exact same grounds that the Racial Integrity Act of 1924 was struck down. [6] It does not survive rational basis scrutiny. There is not a rational basis for defining marriage as being between two people of the same gender anymore than there is a rational basis for defining marriage as being between two people of the same race. Unless my opponent can demonstrate that Proposition 8 does survive rational basis scrutiny, then he has no hope of showing why it is constitutional. The defense of Perry v. Schwarzenegger tried to do this, and their arguments were a joke. Now, I don't want to waste anyone's time by refuting arguments that haven't yet been made. As such, I'll just wait until my opponent attempts to demonstrate why Proposition 8 can withstand rational basis scrutiny.

C3: Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

Once again, I'm going to wait until my opponent provides an actual argument to demonstrate why Proposition 8 survives the strict scrutiny standard of judicial review before I continue to make my case. I ask my opponent, what legitimate government interest is furthered by defining marriage as only being between a man and a woman? He seems to suggest that allowing committed gay couples to marry will lead to bestiality and incest. This is nothing more than a slippery slope fallacy. Neither children nor animals are capable of entering into legal contracts with adults.

My challenger does make another assertion that is quite elusive. He claims that "Since marriage is not dependent on fertility, sexual attraction or romantic involvement, there is no merit in any claim that prohibiting everyone from marrying people of the same gender constitutes a differential treatment of those who are sexually or emotionally involved with persons of the same sex (ie homosexuals)." I'm afraid that I don't understand the point of my opponent's non sequitur (and I don't think that he does either). If there is logic to be found in this claim, I humbly admit that I have failed to see it.

::Conclusion::

Up until this point, my opponent simply hasn't given any compelling argument to demonstrate how Proposition 8 can possibly survive rational basis scrutiny. Moreover, the arguments he has given were the exact same arguments used to defend the anti-miscegenation laws that existed in the 20th century. They are every bit as specious now as they were back in 1967. As should be obvious at this point, Proposition 8 does nothing more than target a suspect class for unequal treatment and advance the private views that gay couples are inferior to straight couples. What has been presented thus far is not a coherent basis for anti-gay discrimination; rather, it only further demonstrates that there is no rational foundation for Proposition 8.

Sources:
1. "Leviticus 20:13: Concerning Homosexuality." ReligiousTolerance.org by the Ontario Consultants on Religious Tolerance. Web. 05 Nov. 2010. http://www.religioustolerance.org....

2. Harris, By Dan. "Anti-Homosexuality Bill In Uganda Causes Global Uproar - ABC News."ABCNews.com - ABCNews.com: - ABC News. Web. 05 Nov. 2010. http://abcnews.go.com....

3. Nguyen, Minh T. "Civil Rights - The History of Gay Rights." 1999. Web. 5 Nov. 2010. http://www.enderminh.com....

4. "Suspect Class: Legal Definition of Suspect Class by the Free Online Law Dictionary." Legal Dictionary. Web. 05 Nov. 2010.

5. "Judge Overturns California's Proposition 8." Scribd. Web. 05 Nov. 2010. http://www.scribd.com....

6. "U.S. Supreme Court: LOVING v. VIRGINIA" FindLaw - For Legal Professionals. Web. 5 Nov. 2010. http://caselaw.lp.findlaw.com....
Lightkeeper

Con

Let me address the above arguments in turn.

1. Why does my opponent claim that a law prohibiting marriage of persons of the same hair colour would be unconstitutional? Sure, it might be unreasonable. Sure, it might appear insane and irrational. But the Constitution does not prohibit unreasonable or even insane laws. There is no "reasonableness clause" in the US Constitution. I quote from wiki:

*Of course, the practical implication of this principle is that a court cannot strike down a statute, even if it recognizes that the statute is obviously poorly drafted, irrational, or arises from legislators' corrupt motives, unless the flaw in the statute rises to the level of a clear constitutional violation.*
http://en.wikipedia.org...

Justice Stevens has (very rightly) made this very point in the case of NEW YORK STATE BOARD OF ELECTIONS,
et al., PETITIONERS v. MARGARITA LOPEZ TORRES et al. I quote His Honour:

*...But as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: "The Constitution does not prohibit legislatures from enacting stupid laws."*
http://www.law.cornell.edu...

The Court has no constitutional basis for striking down a law merely because it is unreasonable, irrational or even insane. The only question is its constitutionality. Would a law prohibiting same hair-colour marriage be unconstitutional? Perhaps. But, if so, not because of its unreasonableness or irrationality.

My opponent is right. The fact that a law applies equally to all persons does not mean that the law is reasonable. But, as I stated above, even if the law is not reasonable, this is not a valid constitutional ground for a challenge.

C1.
My opponent claims that Proposition 8 unnecessarily harms a vunlerable minority group. It's arguable whether homosexuals can be classed as a minority or as vulnerable. But that aside, the very issue is irrelevant. My opponent has failed to demonstrate that there's any Constitutional prohibition against harming a minority group. The Due Process Clause and the Equal Protection Clause merely require that each PERSON be given equal protection by the law. Proposition 8 does not breach this. It treats everyone equally. A heterosexual, a homosexual, a polygamy-sympathiser, a man wanting to marry his mother or his pet are all treated the same way. They can only marry a human and only one human and only a human of the opposite sex. Unless my opponent demonstrates otherwise (applicable case law would be of assistance), there's no breach of either Clause.

C2 and C3 .
My opponent claims that I have failed to demonstrate that the rational basis scrutiny can't be withstood by Proposition 8. But my opponent has not made a single argument as to why the rational basis test should even apply. Rational basis only applies to cases where discrimination exists prima facie. A law that says "homosexuals are not allowed to get married" would be such a case. It would attack a person's right to get married. But Proposition 8 does not do this. It allows everyone to marry, as explained above.

It is in fact me who refuses to rebut arguments that have never been made. The onus is on my opponent. I say he has failed to meet that onus so far.

Slippery Slope.
I am not suggesting that allowing committed gay couples to marry will lead to bestiality and incest (nb, is it proposed that ONLY COMMITTED gay couples would be allowed to marry?). I am asking my opponent whether he would be opposed to allowing people to marry animals or to marry more than one person or to marry their mothers. If my opponent agrees that this should be allowed then I am happy to agree that individual choice should be given such grave weight as to change the millenia-old meaning of marriage. Hence, if my opponent agrees with me, we can settle the debate.

My argument about fertility.
The relevance of that argument was on the point that Proposition 8 is not discriminatory against gays. It discriminates against everyone equally, as explained in my first paragraph of this round. Judge Walker was in error when he claimed that only gays would marry a member of the same sex. You don't have to love someone to marry them and you don't have to be sexually attracted to someone to marry them. Marriage draws with it a number of benefits and one can easily envisage two friends of the same sex deciding ot get married simply for convenience. After all, people of opposite sexes do that already. It is therefore incorrect that only gay people would marry members of the same sex. And the upshot of this is that Proposition 8 does not discriminate against gays. It merely discriminates against those who wish to marry members of the opposite sex. It discriminates against a choice and not against a person. There's nothing in the Constitution that protects choice. The two Clauses in question only protect people. And of course if we are to grant protection to choice then we should allow bestialists to marry their pets etc etc etc. Why not?

History.
My opponent's point about history of discrimination is not relevant. The fact that ancient Jews discriminated against gays (for example) has precious nothing to do with the question of whether Proposition 8 is consitutional. In ancient Greece it was considered untrendy NOT to have a homosexual lover (particularly young boys were in demand). There was discrimination against non-bisexuals. Similar history can be seen in ancient Rome. And yet marriage has always been between members of the opposite sex. My opponent's resorts to history are irrelevant.

In conclusion.
My opponent has not made any references to any law. He has not mentioned a single legal principle that would extend the Due Process Clause or the Equal Protection Clause to apply to groups of individuals. Each clause, on its face, protects THE INDIVIDUAL. And Proposition 8 provides equal protection to every single individual in California.

This is not to say that there are no authorities that do in fact extend the application of the two Clauses to apply to groups. But in the absence of a presentation of any legal principle by my opponent, he has failed to discharge the onus. He has failed to prove his case. I note that he does make reference (very vaguely and without sufficient detail of the principles involved) to Judge Walker's decision. But Judge Walker's decision is pending appeal. And Judge Walker himself has stayed his own decision until the appeal is resolved. His decision is not binding law at this point.

In a legal argument, the usual flow is this:

1. Present the facts
2. Present the applicable law
3. Apply the law to the facts

My opponent, with respect, has failed to discharge his onus on all three points. In particular, he has failed to present the applicable law. Rather, his argument seems to rely on a gut instinct, "it is unreasonable and therefore unconstitutional". Well, that's not the case. The Constitution does not prohibit the States from passing stupid laws.
Debate Round No. 2
Freeman

Pro

First, I would like to thank my opponent for his quick response. It would seem as though some headway has been made; however, my opponent has set out a few red herrings in his last round that need to be addressed. I am not, for instance, arguing from my gut instinct that "[gay marriage bans] are unreasonable and therefore unconstitutional". Nor have I argued that there is a "reasonableness clause" in the U.S. constitution. I am utilizing the exact same line of reasoning and legal precedents that were used to undo the anti-miscegenation laws of the 20th century. Proposition 8 does not withstand rational basis review, since classifying people based on sexual orientation and discriminating against them without cause is not reasonable. Moreover, it also doesn't survive strict scrutiny review because it does not advance a compelling government interest while denying people of a fundamental right. In the words of Honorable Judge Vaughn Walker, "When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny." [1] And when either strict scrutiny or rational basis scrutiny is applied to Proposition 8, it becomes very clear that this law violates the federal constitution of the United States.

C1: Proposition 8 unnecessarily harms a vulnerable minority group.

In this section, my rival claims that I "[have] failed to demonstrate that there's any Constitutional prohibition against harming a minority group." Well, I didn't set out to prove that. I have, however, demonstrated Proposition 8 denies a fundamental right to a suspect class and harms them in the process without a rational justification. He also says that the history of discrimination against gays I have outlined is not relevant, but this is clearly not true. The evidence I have offered helps demonstrate why gay people belong to a suspect class that is vulnerable.

Additionally, my challenger claims that I "[have] not mentioned a single legal principle that would extend the Due Process Clause or the Equal Protection Clause to apply to groups of individuals. Each clause, on its face, protects THE INDIVIDUAL." The Equal Protection Clause and the Due Process Clause protects everyone by their very nature. And these two clauses were invoked to end anti-miscegenation laws that affected everyone. My opponent, it would seem, has imagined a problem that doesn't even exist.

On a side note, it is not necessary for me to determine whether or not various unconventional forms of "marriage" are constitutional. If my opponent (or anyone else for that matter) wants to marry and have intercourse with an animal, then they should find a lawyer and begin compiling their legal arguments that would allow this to occur. A suitable court can review each new case one at a time if they so desire.

C2: Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

As I've pointed out in my first round, marriage is a fundamental right as indicated by the Supreme Court. In particular, the Supreme Court has found that, "[F]reedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." (Moore v. East Cleveland [2]) Similarly, the court has ruled that, "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." (Loving v. Virginia [3]) Any law that hinders this fundemental right for a suspect class is subject to rational basis scrutiny. Accordingly, it should be obvious that Proposition 8 can only be constitutional if it survives rational basis review. However, Proposition 8 does not survive rational basis scrutiny. There simply is no good reason to arbitrarily inhibit the fundamental right of homosexuals to marry the consenting person of their choice.

There is no such thing as the right to "straight marriage" and the right to "gay marriage" because there is no such thing as the "man" role in marriage and the "woman" role in marriage. There is only the right to marriage (and the irrational boundaries that inhibit this fundamental right). As far as the government is concerned, the conjugal roles of a man and woman are completely indistinguishable from one another. There is not any set of rights, responsibilities or obligations in marriage that can be undertaken by a straight couple which could not be undertaken by a gay couple. Given these facts, marriage can be understood as the union of equals under the law. [4] As such, Proposition 8 doesn't provide equal protection under the law since it denies the fundamental right to marriage to gay people without a rational justification. Therefore, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment by failing to treat the gay citizens of California equally in issuing marriage licenses.

C3: Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

Yet again, my opponent has decided to argue that Proposition 8 is not unconstitutional because gay people have the right to marry someone of the opposite gender. Now, I shouldn't have to point out how absurd this argument is, but I'm still going to. My aunt can't marry her partner under Proposition 8 simply because she is gay. Not only this, she can't marry her partner because she is a woman. I'll prove it to you. If my aunt was a man, she could marry her partner. My aunt's male next door neighbor can marry my aunt's partner, but my aunt cannot. As a result, Proposition 8 prevents her from enjoying due process under the law by impeding her fundamental right to marry the person of her choice. Thus, Proposition 8 not only discriminates on the basis of sexual orientation, it also discriminates on the basis of gender. Because Proposition 8 unreasonably prevents California from upholding fundamental rights based on sexual orientation and gender, it violates the Due Process Clause of the Fourteenth Amendment.

::Conclusion::

I'm disappointed to indicate that my challenger has failed to grapple with the arguments I have presented. There is simply no rational basis for Proposition 8, and no legitimate government interest is being furthered by preventing gay people from being married. When I challenged my opponent to demonstrate how Proposition 8 survives rational basis scrutiny or strict scrutiny, he merely seemed to suggest that he doesn't even have to. He has, however, offered slippery slope fallacies, appeals to tradition, straw man arguments, non sequiturs and has generally ignored much of my case. Indeed, my opponent claims that I haven't even made a proper case yet, which is a claim I find to be truly incredible. I have proven everything I have set out to prove (and everything I have needed to prove). Marriage is a fundamental right as indicated by numerous Supreme Court rulings. Moreover, it is a fundamental right that is being unnecessarily and irrationally denied to gay people by Proposition 8 because of their sexual orientation and gender. For these reasons, Proposition 8 is in violation of the federal constitution.

Sources:
1. Walker, Vaughn R. "Case3:09-cv-02292-VRW Document708." American Foundation for Equal Rights. Web. 6 Nov. 2010. http://www.equalrightsfoundation.org.... pp. 109 - 110

2. FindLaw - For Legal Professionals. Web. 6 Nov. 2010. http://caselaw.lp.findlaw.com....

3. FindLaw - For Legal Professionals. Web. 6 Nov. 2010. http://caselaw.lp.findlaw.com....

4. Walker, Vaughn R. "Case3:09-cv-02292-VRW Document708." American Foundation for Equal Rights. Web. 6 Nov. 2010. http://www.equalrightsfoundation.org....
pp. 114 - 115
Lightkeeper

Con

I equally thank my opponent for his prompt responses. Now, straight to the issues.

1. My opponent says that Prop 8 does not withstand the rational basis review because classifying people based on sexual orientation and discriminating against them without cause is not reasonable. However, as addressed by myself above, my opponent has not provided any legal basis whatsoever to support any claim that rational basis review is required in the present case at all. He has not referred to any legal principle to outlines the circumstances in which rational basis review is to be applied.

2. My opponent says that Prop 8 does not survive strict scrutiny review because it does not advance a compelling government interest while denying people a fundamental right. Again, he has not provided ANY LEGAL BASIS for claiming that strict scrutiny review applies in a situation such as this. He is tossing legal terms around without demonstrating that they are legally applicable in a case such as this.

3. My opponent NOW cites Judge Walker to support the above propositions. He does that in the final round of the debate. However, there are two problems with this.

Firstly, Judge Walker's decision in P v Schwazenegger has been stayed (by Judge Walker himself!) pending appeal and therefore does not represent applicable law at this point.

Secondly, Prop 8 does not deny anyone any fundamental right. If marriage is indeed a fundamental right (as my opponent claims), then Proposition 8 certainly allows every person to get married. Proposition 8 simply defines marriage to be a union between one human and another human, who must be of different genders. Whether you are straight or gay, Mexican of Swedish, male or female, you can get married. Proposition 8 does not affect that right.

2. C1: Unneccessary harm to a vulnerable minority group.

a. My opponent claims that he has demosntrated that Prop 8 denies a fundamental right to a suspect class without a rational justification. Firstly, he hasn't. He has not demonstrated either that homosexuals are legally a suspect class. He hasn't even defined what a suspect class is in law! Secondly, he hasn't overcome my argument that Prop 8 treats everyone equally. Thirdly, he hasn't demonstrated any legal principle that prohibits depriving a suspect class of a fundamental right. He has not addressed my argument that the two Clauses of the Constitution protect INDIVIDUALS and not classes. In short, he has done nothing to support his claim. He has left the readers to go and research the law for themselves. Well, that's not how a debate works. It can't. Law, facts, apply law to facts.

b. The wording of the Equal Protection Clause and the Due Process Clause is clear. Every person is to have equal protection under the law. And Prop 8 does exactly that. Every person can get married. Sure, a paedofile can't marry a child. And a beastialist can't marry an animal. Those things are illegal. And also, a person (gay OR straight) can't marry a member of the same sex. That's because marriage is defined as a union between a man and a woman. But each of those individuals can get married. There's no breach of the Clauses. My opponent has demonstrated nothing to the contrary.

3. C2&3 - Equal Protection Clause and Due Process Clause

My opponent now claims that he pointed out in the first round that marriage is a fundamental right. He NOW (in the last round) makes a reference to Moore v East Cleveland where the Court said "Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process…." But what was the context of Moore's case? Well, the question was about the constitutionality of a law that prohibited nuclear families from residing together. The case had nothing to do with the right to choose to change the millennia-old meaning of the word "marriage". In fact, the case went on to say this: "Of course, the family is not beyond regulation. See Prince v. Massachusetts, supra, at 166. But when the government intrudes on choices concerning family *living arrangements*, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." The case WAS NOT ON POINT!
(emphasis is mine)

And where did the Court get this from? It got it from another case. It cited the case of Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639 -640 (1974). Was THAT case about the freedom to change the meaning of the word "marriage"? No. That case was about mandatory maternity leave. Pregnant women being forced to leave work. It had NOTHING TO DO with marriage.

Is this a line of cases then that's even close to the issue? No. And my opponent has not demonstrated otherwise. He is what we call "quote mining". He picks a sentence that's NOT ON POINT and attempts to make it look like binding law. And yet, it was obiter and out of context.

My opponent also attempts to rely on Loving v Virginia. Again, this was a case decided by a Court that spoke of marriage within the context of its ordinary meaning: opposite sex. But I go further. Did my opponent cite anything from that case that relates to a right to choose? No. He merely cited a statement that everyone has a right to marry. Well sure, everyone does have that right. And Prop 8 does not take that right away.

My opponent then makes reference to his aunt who can't marry her lesbian partner. He says that this is a breach of the Constitution because it deprives her of her fundamental right to choose the person she will marry.

But yet again, my opponent has failed to show any legal principle whatsoever that there exists a Constitutional right to marry any person whatsoever. He has not showed us that either of the two Clauses guarantees a person the right to marry any person whatsoever that they please. And even if that were the case, Prop 8 does not prohibit that. Prop 8 merely defines the word marriage the same way it has always been defined.

What HAS my opponent showed? Two legal propositions:

1.That everyone has a right to marry (Loving v Virignia). Prop 8 does not get in the way of this.

2.That "choice in matters of marriage and family life is a fundamental right" (Moore's case). Moore's case seems tempting here, I agree. But as pointed out above, it was decided by judges who understood "marriage" to mean "union between opposite sex" and "family" to not include units formed by members of the same sex. What's more, Moore's case was NOT ON POINT AT ALL. It was about a prohibition against nuclear families residing together. Anything it DID say about marriage itself (even within the constraints of the actual meaning of the word) was said as Obiter Dictum (not law, just comment).

Conclusion

My opponent concludes that he's disappointed. Well, so am I. He has not presented any relevant legal principles that would give grounds to a constitutional challenge.

And tell you what, there are plenty. You see, I'm not against gay marriage. In fact, I myself think that it's probably unconstitutional. But in order to demonstrate this, you have to present RELEVANT LAW and then apply it to the facts.

My opponent has not done that. He has not showed that Prop 8 breaches either of the two Clauses. He has not showed that the Clauses are capable of protecting a "suspect class" OR that homosexuals are legally a suspect class or even what "suspect class" means in law OR that the right to choose any person (of either sex) as one's spouse is a right recognised by American Constitutional Law.

In light of this I urge you to vote Con.

Thank you for the debate.
Debate Round No. 3
30 comments have been posted on this debate. Showing 1 through 10 records.
Posted by Torm 6 years ago
Torm
My mind has been changed.
Posted by juvanya 6 years ago
juvanya
No it doesnt. Gays can marry, just not who they want to marry.
Posted by Lightkeeper 6 years ago
Lightkeeper
Grrr...and this is the SECOND time I make the same mistake... I meant I believe PROPOSITION 8 is unconstitutional, not that same-sex marriage is. Should be clear from context :)
Posted by Lightkeeper 6 years ago
Lightkeeper
#left_wing_mormon

I stand exactly where you (and Freeman) do. I'm 100% pro same-sex marriage and I believe it's unconstitutional. But this is a debate. And there's a burden of proof. Pro has not demonstrated the applicable law.

It's disappointing to see that this site hasn't changed during my absence and people still vote on their own political convictions and not on the merits of the debate :(
Posted by left_wing_mormon 6 years ago
left_wing_mormon
It's no secret where I stand on this issue, however I was throughly impressed by the Con sides ability to make a case for the negative. But when it is all said and done and putting my opinion of hold for the sake of viewing the debate, Pro did a superb job. Thank you.
Posted by RoyLatham 6 years ago
RoyLatham
Arrgh, "does rise" >> "does not rise"
Posted by Freeman 6 years ago
Freeman
@RoyLatham

Don't you find those arguments convincing?
Posted by Freeman 6 years ago
Freeman
This goes in order straight down:

DOMESTIC PARTNERSHIPS DO NOT SATISFY CALIFORNIA'S OBLIGATION TO
ALLOW PLAINTIFFS TO MARRY
Having determined that plaintiffs seek to exercise their
fundamental right to marry under the Due Process Clause, the court
must consider whether the availability of Registered Domestic
Partnerships fulfills California's due process obligation to samesex
couples. The evidence shows that domestic partnerships were
created as an alternative to marriage that distinguish same-sex
from opposite-sex couples. FF 53-54; In re Marriage Cases, 183 P3d
384, 434 (Cal 2008) (One of the "core elements of th[e] fundamental
right [to marry] is the right of same-sex couples to have their
official family relationship accorded the same dignity, respect,
and stature as that accorded to all other officially recognized
family relationships."); id at 402, 434, 445 (By "reserving the historic and highly respected designation of marriage exclusively
to opposite-sex couples while offering same-sex couples only the
new and unfamiliar designation of domestic partnership," the state
communicates the "official view that [same-sex couples'] committed
relationships are of lesser stature than the comparable
relationships of opposite-sex couples."). Proponents do not
dispute the "significant symbolic disparity between domestic
partnership and marriage."
Posted by Freeman 6 years ago
Freeman
Doc #159-2 at 6.
California has created two separate and parallel
institutions to provide couples with essentially the same rights
and obligations. Cal Fam Code § 297.5(a). Domestic partnerships
are not open to opposite-sex couples unless one partner is at least
sixty-two years old. Cal Fam Code § 297(b)(5)(B). Apart from this
limited exception —— created expressly to benefit those eligible
for benefits under the Social Security Act —— the sole basis upon
which California determines whether a couple receives the
designation "married" or the designation "domestic partnership" is
the sex of the spouses relative to one another. Compare Cal Fam
Code §§ 297-299.6 (domestic partnership) with §§ 300-536
(marriage). No further inquiry into the couple or the couple's
relationship is required or permitted. Thus, California allows
almost all opposite-sex couples only one option —— marriage —— and
all same-sex couples only one option —— domestic partnership. See
id, FF 53-54.
The evidence shows that domestic partnerships do not
fulfill California's due process obligation to plaintiffs for two
reasons. First, domestic partnerships are distinct from marriage
and do not provide the same social meaning as marriage. FF 53-54.
Posted by Freeman 6 years ago
Freeman
Second, domestic partnerships were created specifically so that
California could offer same-sex couples rights and benefits while
explicitly withholding marriage from same-sex couples. Id, Cal Fam
Code § 297 (Gov Davis 2001 signing statement: "In California, a
legal marriage is between a man and a woman. * * * This [domestic
partnership] legislation does nothing to contradict or undermine
the definition of a legal marriage.").
The evidence at trial shows that domestic partnerships
exist solely to differentiate same-sex unions from marriages. FF
53-54. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and
responsibilities associated with marriage, the evidence shows that
the withholding of the designation "marriage" significantly
disadvantages plaintiffs. FF 52-54. The record reflects that
marriage is a culturally superior status compared to a domestic
partnership. FF 52. California does not meet its due process
obligation to allow plaintiffs to marry by offering them a
substitute and inferior institution that denies marriage to samesex couples.
15 votes have been placed for this debate. Showing 1 through 10 records.
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