The Instigator
kenballer
Con (against)
Losing
4 Points
The Contender
XimenBao
Pro (for)
Winning
13 Points

Same-sex marriage in the U.S.

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Post Voting Period
The voting period for this debate has ended.
after 4 votes the winner is...
XimenBao
Voting Style: Open Point System: 7 Point
Started: 4/30/2012 Category: Society
Updated: 4 years ago Status: Post Voting Period
Viewed: 2,995 times Debate No: 22347
Debate Rounds (5)
Comments (2)
Votes (4)

 

kenballer

Con

FIRST ROUND WILL JUST BE FOR ACCEPTANCE AND RULES ONLY

In this debate, make sure you include in your argument the following:

1. Explain what CIVIL marriage and the purpose of it is and how this view of marriage is true (if you can of course)
2. Explain how the due process and equal protection clause are being violating.
3. Show how having gay marriage is more beneficial then banning it.

Also, you can cut and paste information from other debates you have been in to save your time.

Lastly, if five rounds is too long for you, then I will change it. However, if this is the case, You should be the instigator who has the burden of proof while I become the contender.
XimenBao

Pro

Sure, I'll accept.

I don't see any need to cover the three points you bring up in your R1, but I may touch on them tangentally.

Or, if you think you can choose which arguments I have to make, you have to include in your argument the following:

1. Explain why a particular conservative US-Christian definition of marriage should be forced on other groups in a secular society.
2. Explain why 'seperate but equal' is a valid concept of human rights.
3. Show what valid state interest is uniquely present in denying that equal status to same-sex couples.


Over to you.
Debate Round No. 1
kenballer

Con

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. Since this is the case, The law has a presumption of reproductive and child-rearing of potential on the part of heterosexual couples.

Procreation and rearing of children is a biologically driven act that happens in nature. As an insurance policy,The state issues Marriage licenses just in case a couple naturally procreates either by accident or by choice WITHOUT legal and social support in order to regulate procreation/ rearing of children. On a practical level, 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. There are two theories involving the structure and stability of families where the idea of marriage achieves this purpose:

The Responsible Procreation Theory

One way is through the responsible procreation theory which involves establishing family stablity within heterosexual relationships. Family stability is about how many transitions in the environment the child may experience during the child development process. The state uses the notion of Marriage to encourage couples to procreate and/or rear their children in a stable environment that is best situated to raise children.

There is empirical evidence that supports the responsible procreation 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.

This means 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 does not matter. It would still be warranted for the state to use and promote a traditonal notion of marriage to ensure a stable home.

Just go to this website for the studies p.2: http://eprints.qut.edu.au.........
Or http://www.smartmarriages.com.............

The Optimal partnership theory

Another approach is through the optimal partnership theory which involves family structure. Family structure is about who the child is being raised with during the child development process.
The state uses marriage to promote the ideal partnership between two biological married parents.

There is also empirical evidence supporting the optimal partnership 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. Here is an institute that mention the studies:
http://www.urban.org......

GAY MARRIAGE INTERFERES WITH THIS PURPOSE

My argument, in a nutshell against gay marriage is this, where the possibility of natural children is nil in practice and/or in principle, 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:

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, natural parenthood, and connecting children to their own mothers and fathers.

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 for couples to disdain from, would decay and eventually be eliminated. This is because marriage ends up ONLY becoming a matter of choice between consenting adults who want to express their love a certain way.

THE CLAIM THAT GAY MARRIAGE IS A CIVIL RIGHT

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

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

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

LONG TERM EFFECTS OF REDEFINING MARRIAGE

The Social ramifications:

Based on the arguments said above from the discouragement and/or lack of traditional views of marriage, heterosexuals, from vulnerable incoming generations, will most likely be programmed to formulate choices (discussed above) that have the potential to harm their own family and society in general as a result.

Legal ramifications:

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

Just go to this website and read p. 959-964 : http://www.law.harvard.edu......

THE IMMEDIATE EFFECTS OF REDEFINING MARRIAGE

This new law impinges on people's freedoms and their capacity to live their life with freedom of conscience and to transmit their values to their own children. Americans will either be forced to accept something like this or live in fear of a secular government that will pander to the likes of intolerant gay activists. Nevertheless, the immediate effects of redefining marriage will also give us more reasons to believe the long term effects are inevitable:

Schools:

In California, some kids were forced to be left out of a field trip to see a lesbian wedding.

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

Media:

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

Businesses:

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

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

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

Pro

Status of Same-Sex Marriage

Civil marriage (since whatever religions choose to do on their own time is their own business) is defined as "a. The legal union of a man and woman as husband and wife, and in some jurisdictions, between two persons of the same sex, usually entailing legal obligations of each person to the other.
b. A similar union of more than two people; a polygamous marriage. [1]"

This legal union is a legal status which changes the rights and obligations of the people within the marriage. In the US, the right to enter into this union is limited to two people per union and may require them to be of opposite sex depending on jurisdiction. Some states do not allow people of the same sex to be married, and require them to be different sexes.

In those states, people who wish to marry others of the same sex are discriminated against based on their sex. Only a man may marry a woman and only a woman may marry a man. If a man wishes to marry a man, this right is denied on the basis of their sex. This also touches on discrimination due to sexual orientation, since this situation is predicated on the individuals desire to marry someone of the same sex.

Con's Choice

We've got a few rounds to go, so here's where Con needs to make a choice.

The Equal Protection Clause of the Fourthteenth Amendment guarantees requires that, "If a law discriminates between one group of people and another, the government must have a rational basis for doing so. A law that discriminates on the basis of a suspect classification -- that is, it makes a distinction based on race, gender, or another trait that has historically resulted in discriminatory treatment -- is constitutional only if there is a very compelling reason for the distinction."[2]

As Con says, "My argument, in a nutshell against gay marriage is this, where the possibility of natural children is nil in practice and/or in principle, the meaning of marriage is nil .... the law would publicly declare that, from now on, Marriage can be understood apart from responsible procreation, natural parenthood, and connecting children to their own mothers and fathers."

I congratulate Con on making a very clear and concise summary of his position. Everything from his highly selective vision of 'traditional marriage' to his ideas about the state using marriage to promote responsible procreation and ideal partnerships boils down to the argument that marriage is about creating children and raising children.

Now, the obvious problem with this is that opposite-sex marriage is not bound to responsible procreation, natural parenthood, or connecting children to their own mothers and fathers. Opposite-sex marriage is not bound by rules ensuring that opposite-sex couples have and raise children.

The states which disallow same-sex couples being married do not prevent opposite-sex couples getting married who:

Cannot have children
Will not have children
Have a high risk of passing birth defects to children they do have
Have abused children
Have killed children
Have non-sex related characteristics associated with raising poor kids with behavioural problems that struggle in school

The rationale Con uses to justify the denial of rights to same-sex couples is not applied to opposite sex-couples. That puts it squarely as a violation of equal protection.

So what now? Either Con has to advocate for the denial of marraige rights in all cases that might result in sub-optimal child production, or drop the argument that child production is the sole legitimizing purpose of marriage and come up with something different.

Either way promises an interesting debate.

The Immediate Effects of Redefining Marriage

Hooray for all of these!

Source issues

As a final note for this round, Con's links just go to homepages. Even if Con can make them relevant, until he produces the actual evidence there's no reason to consider his arguments about the effects of same-sex divorce on straight marriages or that same-sex couples make worse parents.

[1]http://www.thefreedictionary.com...
[2]http://www.law.cornell.edu...

Debate Round No. 2
kenballer

Con

UPDATES:

My sources from the last round were homepages. I corrected this and now these sources and websites should take you straight to the relevant portion I highlighted.

http://www.urban.org...

http://www.law.harvard.edu...

http://eprints.qut.edu.au...

1. Sexual orientation and Sex discrimination:

I don't agree with PRO's premise that gay individuals are being discriminated against in the first place. For instance, Bans on interracial marriage were about the segregation of protected classes (which has been deemed in the Brown decision to be another form of discrimination) without a reason that can be supported objectively. The Supreme Court has never ruled integration to be a form of discrimination, and the sexes' being able to procreate and rear children is an objective reality. Thus, it does not discriminate on the basis of sex because men and woman can equally marry someone of the opposite sex for responsible procreation and rearing of children and both cannot with the same sex because they cannot procreate. I will explain why this applies to gays and straights as well in more detail.

2. THE PURPOSE OF MARRIAGE

The Fundamental right to marry:

Since Marriage between a man and a woman has been held to be a fundamental right, a law excluding infertile heterosexual couples would be constitutionally unenforceable. The state couldn't survive strict scrutiny since it would be overinclusive and not narrowly tailored. When it comes to gay marriage, there is no fundamental right to gay marriage (anymore than there is for plural marriage) so the state has a 10th amendment right, as established by the U.S. Supreme Court, to deny those relationships. In addition, the rational basis test does not require over and inclusive arguments. However, for the sake of argument, even if there was a fundamental right to gay marriage, I will show how the state would be able to pass the strict scrutiny test and deny this right or discriminate in two distinct ways. Whether it be through the means or the ends.

Procreation:

Well first off, As I explained before, its about possibility or potentially NOT actuality of procreation and rearing of children of couples. Its still possible for heterosexual couples to procreate and rear children naturally with their own mother and father even if they end up not doing so or doing so correctly. For example, PRO's claim that prisoners can still marry is not entirely accurate. ONLY prisoners who do not have life sentences AND are marrying a civilian have a constitutionally protected right to marry. Thus, procreation and child rearing is still possible even in that situation. Also, depending on how you define close realitves, incest is outlawed in all 50 states.

Now, in the case of infertile couples, 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.

By contrast, with same sex couples, we do not need intrusive fertility tests to establish that same sex couples are barren by biological default . Two people of the same sex can never reproduce with each other and there are inherent differences between the genders.

Marriage:

As stated before, the state uses the name/meaning of the institution as a means to an end, which is to encourage couples to obtain a license in the first place. Our marriage laws are there to shape culture and culture shapes conduct. Allowing infertile heterosexuals does not attempt to take away the law's ability to recruit and influence the culture of heterosexuals who are "fertile" to make sure they create and/or raise their offspring's in a stable environment. Moreover, the state cannot promote responsible procreation and rearing of children without referencing and acknowledging the traditional definition of marriage because it's the only union that can procreate and fulfill this particular state's objective; unlike same sex couples who cannot by definition procreate.

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

Moreover, since same sex couples are not similarly situated, an important governmental distinction between the two relationships would be reasonable in order to continue advancing the state's interest in encouraging responsible procreation and rearing of children to each generation while the state can encourage homosexuals to adopt and stay together with civil unions.

JUSTICE is applied EQUALLY in each case.

3."Explain why 'seperate but equal' is a valid concept of human rights."

We have separate but equal situations for men and women that permeate our country ranging from restrooms, the military, prisons, sport teams, and even separate but equal public schools. We have this even though women are a minority that historically have been discriminated against.

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

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

"Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation."[2]"it is not the 'exclusion of women' that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any -- much less a comparable -- institution for women... It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber."

Obviously, this is all because there is a fundamental difference between race and sex. This is why we no longer have bans on interracial marriage or have Jim Crow laws but still have and always accepted separate facilities for the sexes and define marriage between one man and one woman. Therefore, there is no reason to think that gay unions will also be viewed or treated inferior in practice or in principle, especially when the term "civil unions" by itself is simply a neutral term without meaning not a negative one.

Unless PRO can show that all or majority of the states that have civil unions for same sex couples were unable to provide the same rights and have failed to enforce their civil union laws, separate but equal is a valid compromise.
XimenBao

Pro

Here’s where I’m going, in outline form:

  1. Deciding who you can marry based on what sex you are is discrimination.
  2. In order to make a case that same-sex marriage should be illegal, there must be a compelling reason for that discrimination.
  3. Optimal child production is not a compelling reason for that discrimination because:
    1. It’s not actually a requirement for marriage
    2. Con’s potentiality argument defeats his own case (Surprise Bonus Included)
    3. Con’s separate-but-equal argumentation defeats his own case
  4. Con’s sources support Pro

A. Deciding who you can marry based on what sex you are is discrimination

Limiting your options about who you can marry based on your sex is sex discrimination. Con’s discussion on the legality of integration, racial segregation, and the fact that it’s normally opposite couples that procreate doesn’t challenge this. That last is an argument to justify the discrimination, not an argument against its existence.


B. In order to make a case that same-sex marriage should be illegal, there must be a compelling reason for that discrimination.

Con asserts that marriage is a fundamental right, but it should only apply to opposite-sex couples (under his heading “The Fundamental Right to Marry.”) Wonderful. Now in order to meet his burden of proof, he must show a compelling reason to deny that fundamental right to same-sex couples. Con’s put all his eggs in the procreation basket, and that is a mistake because


C1. Optimal child production is not a compelling reason for that discrimination because It’s not actually a requirement for marriage

There is no requirement for opposite-sex couples to have children as a component of marriage, nor to raise them. To the contrary, many opposite-sex marriages are allowed which either cannot lead to child production or are in situations where most of us wish they wouldn’t.

States which prohibit same-sex marriage allow women with hysterectomies to get married. Child abusers and child killers can get married, Con’s nitpicks about their status while actually imprisoned notwithstanding. When children are taken away from unfit parents, the parents’ marriage isn’t dissolved, even if they’re convicted of related criminal charges.

Marriage simply does not require a commitment to child making. Con is free to believe that the value of marriage lies in this higher purpose, but nowhere is the ability or commitment to bear and raise children required of opposite sex couples to partake of what Con agrees is a fundamental right. So despite what Con thinks is the value or purpose of marriage, it isn’t why opposite-sex couples are allowed to be married.

It’s allowed because we’ve decided as a society that people who want to be married have that right, regardless if they’re too old to have children, if a woman still has a uterus, if a man has an injury that prevents reproduction, or if they openly state they have no desire to have children. In all of these cases, our society says they have the right, the fundamental right, to be married.

Child production fails as a basis to justify discrimination against same-sex couples regarding marriage. Being of the same-sex is just one reason among many other allowable reasons that a couple probably won’t have children, that this particular reason should deny them this right suggests the real objection is anti-gay bias rather than concern with child production. Bias is not a compelling reason.


C2. Con’s potentiality argument defeats his case. Bonus feature: Gay people are good parents

In response to my similar arguments in Round 2, Con argues that we shouldn’t consider whether opposite-sex couples actually have children and raise them in optimal environments, so long as they have the theoretical potential to do so, such potential including medical science making infertile couples fertile. Reserving the right to disagree:

Female-same sex couples have the potential to raise children thanks to the medical fertility treatment of a sperm donation. As far as optimal parenting, “children in lesbian homes scored higher than kids in straight families on some psychological measures of self-esteem and confidence, did better academically and were less likely to have behavioral problems, such as rule-breaking and aggression.[1]”

There’s no obvious way for male same-sex couples to have children that I’m aware of, but since we’re talking potentials, they could potentially adopt and raise a child that way. Adoption of course, being necessary because (orphans aside) raising children is not a necessary requirement of opposite-sex marriages and it’s allowable to give them up. I suspect the kids will do ok here too, since as Con’s source says, stability is a key component of successful child-rearing, and despite the illegality of marriage reducing stability, some metrics “suggests a certain stability of their relationships that's much greater than heterosexual unmarried partners.”[2]

I’ll talk later about how the rest of Con’s source don’t help him either, but this suffices to show that once the issue of potentiality is raised, Con has no grounds left to deny marriage to same-sex couples since they can be parents too, and pretty good parents at that.


C3. Con’s separate-but-equal argumentation defeats his case

Apropos of nothing in my R2, Con presented an argument about separate-but-equal which undercuts the rest of his arguments. Here, Con argues that the discrimination against same-sex couples can be avoided by creating civil unions, a separate institution from marriage, but which provide all the same rights, thus treating them equally under the law.

This is a concession of the rest of the debate to this point. The need for civil unions to balance an equal protection violation from the denial of marriage rights admits that the denial of marriage is discrimination, it is not justified, and thus same-sex couples need to get the same rights some other way.

And once we’re to that point, where same-sex civil unions are functionally identical to opposite-sex marriage, what’s the reason for denying same-sex couples the right to call themselves married except for an anti-gay bias? Bias is not a compelling reason.


D. Con’s sources support Pro

While I think the last few sections are sufficient to win the debate, I would like to make some source criticisms that remove sections of Con’s advocacy.

Con’s evidence for Responsible Procreation theory, that marriage is especially necessary and designed for the production and raising of children, is a study criticizing pre-martial cohabitation [3]. Not only is this off-point, but it misses the issue raised by the source he cited to support Optimal Partnership theory.

The Urban.org source noted that as same-sex marriage is mostly illegal, it’s unfair to compare same-sex cohabitation to opposite –sex marriage, but when you do compare cohabitation of both pairings, the same-sex partnerships are more stable [2].

So Con’s Optimal Partnership source speaks against his Optimal Partnership advocacy, and whatever elements of his Responsible Procreation source are on-topic are shown to be faulty by his other evidence. This leaves his advocacy based on pure personal assertion and can be weighed as such.

His Harvard Law Journal article is another interesting case. While I didn’t notice any claims about same-sex marriage hurting opposite –sex marriage, like Con said there would be, I did notice that the theme of the article was bemoaning how marriage is not focused on economical child-rearing like the author thinks it should be, but instead that things like no-fault divorce show that society values the right of people to form marriage bonds because they want to be together for reasons like love. [4] That fits with my argument of what marriage is about and counters Con’s.

[1] http://www.time.com...

[2] http://www.urban.org...

[3] http://eprints.qut.edu.au...

[4] http://www.law.harvard.edu...

Debate Round No. 3
kenballer

Con

LONG TERM EFFECTS OF REDEFINING MARRIAGE

"More partnerships, fewer marriages
Since 2001, the number of registered partnerships has increased almost fivefold, while the number of marriages is significantly lower than around the turn of the century. In 2010, more than 73 thousand couples got married, as many as in 2009 versus approximately 82 thousand couples in 2001. "

http://www.cbs.nl...

This reveals that the number of couples choosing cohabitation (or register partnerships) increased almost five times more after the legalization of gay marriage. This is clear indication that gay marriage may have had something to do with it. This part of the study ,also, affirms the argument I made early about marriage being a matter of choice between consenting adults and the increase of cohabitation among young vulnerable generations :

"Two third of the young people living together want to marry eventually but keep postponing marriage. The same was true in 2003. The share of unmarried parents is increasing. Among the people in their thirties it went from 8 to 22 percent in a decade. Over half of all first children are born outside marriage. "

http://www.cbs.nl...

If this was any other country or the increase was minimal or happened before gay marriage was legalized, then maybe it would not be as significant or other factors would be relevant to the discussion. However, Netherlands was not only the first country that legalized gay marriage and had a good head start compared to the others, but it was legalized in 2001.

1. "A. Deciding who you can marry based on what sex you are is discrimination"

PRO merely asserts discrimination without providing an argument or explaination as to why and does not make any effort to address my refutation of this assertation either. All he does is make another assertion without an explanation. The fact is discrimination by definition is treating two similar indivduals differently. PRO does not explain how this is the case here and I explained already that its not the case here. Thus, I am assuming he is dropping this argument.

2."B. In order to make a case that same-sex marriage should be illegal, there must be a compelling reason for that discrimination."

PRO has to be careful about committing the Question Begging fallacy here. YES, it has been determined that you have a fundamental right to marry by the supreme court that doesn't mean you have a right to marry your sister or marry polygamously. This is because marriage has a legal conventional definition to it. The right to marry someone of the same sex would have to be established by the Supreme Court first. For example, a bisexual who has this simultaneous feeling for both genders may argue that he has a fundamental right to marry. The answer would be YES, however , at this point in time, he does not have a right to marry two people in a threesome.

The point I am trying to make is that the U.S. Supreme Court has always defined marriage to be between a man and a woman for the continuation of society and never did they say that the fundamental right to marry included same sex marriage or even plural marriage. In fact, in both cases, the Supreme Court rejected the existence of such definitions or rights in the past. Since marriage is a fundamental right, would I have the right to marry 80 people ,according to PRO's argument, .....YES and that's why his claim is fallacious. Now, let me provide the evidence that there is no fundamental right to gay marriage

5 years after the Loving decision, The U.S. Supreme Court in Baker v. Nelson regarding the issue of Same sex marriage reinforces and clarifies this point in 1972 when they endorsed a Minnesota supreme court decision: http://www.cas.umt.edu......

"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 plenty of state and federal courts that mention Baker as a U.S. SCOTUS ruling. This page lays it all out:
http://en.wikipedia.org......

3. "C1. Optimal child production is not a compelling reason for that discrimination because It's not actually a requirement for marriage"

PRO is attacking a strawman argument here. I specifically said its about possibility or potentially NOT actuality of procreation and rearing of children of couples where the state requires procreation and rearing of children. This means setting up state intrusive fertility tests would be an example of requiring procreation and rearing of children. Also, PRO continues to assert marriage is not about children and procreation without providing an argument or explaination as to why and again does not make any effort to address my refutation of this assertation either.

4."C2. Con's potentiality argument defeats his case. Bonus feature: Gay people are good parents."

PRO continues to ignore my argument I made in round 2. Again, The traditional view of marriage is based on the "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. Since this is the case, this would exclude polygamists, gay men, and lesbians or single straight women who choose to procreate alone. The state does not have marriage licenses for singles where you can marry yourself.

5."C3. Con's separate-but-equal argumentation defeats his case"

Well first off, I addressed the separate but equal option because PRO asked me to include this into my argument as a requirement for this debate and it was the only direct argument for gay marriage.

Also,This is not a concession. Unlike infertile heterosexual couples, I explained already how same sex couples would change the purpose of marriage on a social and legal grounds or in principle and in practice. They would also change the means to achieve that purpose. Another refutation that PRO did not address.

6."D. Con's sources support Pro"

well first off, my study was about affirming the validity of the responsible procreation theory with evidence. This study not only condemns pre-marital cohabitation but explains who is the most likely to do it which is people who do not have traditional views of marriage. PRO is advocating that we encourage a non-traditional view of marriage by including same sex marriage into the definition and essentially programmed vulnerable generations to eventually choose cohabitation as the first option for their relationships. So I don't get how this is off-point at all.

When it comes to the other studies, PRO continues to base his argument on a logical fallacy through Proof by assertion and does not explain why studies invalidate my arguments.

Lastly, I said that on page 959-964 my harvard law website talks about the potential effects of same sex marriage that would actually harm both gay and straight couples.
XimenBao

Pro


I’m going right down the format from last round and catching his Netherlands stuff at the end in sources.

A. Deciding who you can marry based on what sex you are is discrimination

As Con says I’ve provided neither an argument or explanation for this, I’ll repeat my argument from R1.

“Only a man may marry a woman and only a woman may marry a man. If a man wishes to marry a man, this right is denied on the basis of their sex.”

It could also be considered sexual orientation discrimination. As I mentioned in response to Con’s R2, attacks on racial comparisons I didn’t make and arguments that men and women can procreate and same-sex couples can’t don’t speak to the issue of whether this is or is not discrimination.

Con doesn’t argue any further. He simply says that he explained why it’s not discrimination, so we can consider the point dropped. Con’s argument was:

”Thus, it does not discriminate on the basis of sex because men and women can equally marry someone of the opposite sex for responsible procreation and rearing of children and both cannot with the same sex because they cannot procreate”

This is an attempt to justify discrimination not argue against its existence. A man can marry a woman because they can procreate (according to Con), but a woman can’t because the two women can’t procreate. That’s an attempted justification, not an argument against its existence.

So, no, the point isn’t dropped.

Up until this point, we haven’t used special definitions for discrimination, so I’ve been using the standard one, “treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit... [1]”

Con’s definition, “treating two similar individuals differently” is overbroad in scope, possesses excessive ambiguity in ‘similar’ and isn’t a widely used or accepted definition.

B. In order to make a case that same-sex marriage should be illegal, there must be a compelling reason for that discrimination.

In order to justify discrimination, whether using the standards of equal protection or basic fairness, there must be a good reason.

Con agrees that there is a fundamental right to marry. He then goes on to list exceptions, like polygamy and incest where that right doesn’t apply. We aren’t debating polygamy and incest, so I have no stake in whether those positions are right.

We’re debating same-sex marriage. So there needs to be a compelling reason to discriminate against a person who wants to marry a person of the same sex on the basis of that person’s sex or sexual orientation.

Con quotes a few court cases to show that same-sex marriage has been held to be illegal. Well yes, I noted in R1 that several states forbid same-sex marriage. Same-sex marriage not being currently recognized as a right in all states is not a point under contention. The question is not “ARE we discriminating” but “SHOULD we be discriminating.” To the extent that Con is making an appeal to tradition; that's a fallacy.

From those court cases, Con picks out a quote for that question, specifically "Marriage and procreation are fundamental to the very existence and survival of the race." Con then forgoes the potential to build an argument from that. Instead, he mentions that more court decisions are based on it, throws the ball to Wikipedia to lay out the details, and then fails in that by linking to a homepage again.

Court cases establishing the legality or illegality of same-sex marriage by themselves tell us nothing about the existence of a compelling reason to discriminate on sex and prevent same-sex marriage, although using the reasoning within them to build an argument might.

For example, in a 2008 decision in California [2], the judge stated,

“the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own -- and, if the couple chooses, to raise children within that family -- constitutes a vitally important attribute of the fundamental interest in liberty and personal {Page 43 Cal.4th 782} autonomy ....

Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation”


This bolsters my argument that marriage is based on an individual right to marry, not a social obligation to have children. It supports my argument that denial of marriage rights based on sex or sexual orientation is discrimination. Finally, it shows that courts aren’t bound to 'traditional' norms.

C1. Optimal child production is not a compelling reason for that discrimination because It's not actually a requirement for marriage

No opposite-sex couple is required to have or raise children as a requirement for marriage. This shows that having and raising children is not a valid reason to discriminate against same-sex marriage as its not one applied to opposite-sex marriages.

Con claims I’m strawmanning him here because it’s really the potential for childbearing and raising that matters. Well, no opposite-sex couple is required to have the potential to have or raise children as a requirement for marriage. This shows that having the potential to have and raise children is not a valid reason to discriminate against same-sex marriage as its not one applied to opposite-sex marriages.

Con claims I offer no evidence of this claim. It’s a burden-of-proof error. If he wants to claim that states require this potential, lets see the laws. Not the rationale for old court decisions, but the actual requirements to get married.

Even if he does find some relic that I’m unaware of, it doesn’t really matter because, first, if having and raising children is the basis for denial of rights, but we don’t care if they actually do so long as they could, then it can’t be a very important basis and we can dismiss it. Also:

C2. Con's potentiality argument defeats his case.

Once Con raises potentiality, his objections don't apply. Gay people can potentially be parents, and good parents at that.

Con’s defense is the start of a teleology argument. Only the start, though. Con doesn’t define how he’s using a densely packed philosophical term or its relevance to the debate. Why should we restrict our rights to the limited functions of the natural body when we can do better? We shouldn’t, as Con implicitly concedes when he suggests medical treatments to continue being fertile when we would naturally stop. Also, he’s communicating over the internet instead of shouting really loud. (I know, but it's consistent with how Con used the term)

Con doesn’t build a convincing argument for teleology and it is contradicted by his other arguments, so potentiality allowing same-sex parents meets Con’s requirements for marriage and affirms that same-sex marriage should be legal.


C3. Con’s separate-but-equal argumentation defeats his case

Here I say that Con’s proposal of a civil union status identical to marriage in all but name to avoid equal-protection violations admits is rights denial is an equal protection violation. Con responds by saying he made earlier arguments about changing the meaning of marriage.

Relevance? None that I can tell. Once I get this far, there's no reason for a different name but bias.

D. Sources

I ask voters to check Con’s sources. His Netherlands sources don’t connect same-sex marriage to any social ills, that’s his unsupported correlation fallacy.

I checked and I missed the bit in his law journal article. It's the guy's opinion that laws updates for children in same-sex marriages can't accommodate everyone else. These are ideas that need to be raised in the debate to have weight.

I stand by my other criticisms.

[1] http://dictionary.reference.com...

[2]http://bigfatgenius.com...


Debate Round No. 4
kenballer

Con

A. SEX AND SEXUAL ORIENTATION EQUALITY:

1. Sex Equality

I was able to show that there is no discrimination between the sexes because men and woman can equally marry someone of the opposite sex and both cannot marry the same sex.

PRO's only argument that the sexes are being discriminated was this quote:

"Only a man may marry a woman and only a woman may marry a man. If a man wishes to marry a man, this right is denied on the basis of their sex."

This statement is misleading because he forgets to mention that If a woman wishes to marry a man, this right would also be denied to them on the basis of sex as well thereby resulting in equal treatment between the sexes. He also provided no evidence or argument that integration is another form of discrimination.

2. Sexual Orientation Equality

I have also shown that there is no evidence of discrimination on the basis of sexual orientation either by explaining the purpose of marriage is for encouraging responsible procreation. Since this is the only union that can achieve this, This is why there is a fundamental right to marry someone of the opposite sex only. I have even demonstrated this by providing case law from the supreme law of the nation that reiterated my point. Therefore, gays and straights can marry anybody of the opposite sex for responsible procreation and rearing of children.

B. THE FUNDAMENTAL RIGHT TO MARRY HETEROSEXUALLY

(Again, I apologize to the audience. Here are the websites to the Baker v. Nelson case and its SCOTUS binding precedent. Unlike PRO's court cases, my court cases are actually from the U.S. supreme court the supreme law
which automatically trump his state court decision.)

http://en.wikipedia.org...
http://www.cas.umt.edu...

PRO is arguing in circles here again. Fundamental rights are rights based on tradition and history. Fundamental rights are based on the "is" rather than the "ought" and the Equal protection is based the "ought". This means when PRO claims there is a fundamental right to marry and therefore gay marriage is a right (another circular argument), he Then claims I am making the appeal to tradition fallacy when thats exactly what he is trying to do.

C1. THE POSSIBILITY OF RESPONSIBLE PROCREATION IN PRACTICE

Since PRO is challenging me to present more case law that mentions this state interest, here is a federal 8th circuit case called Cep v. Bruning which also trumps his state court cases:

"The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in "steering procreation into marriage." By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws "encourage procreation to take place within the socially recognized unit that is best situated for raising children." The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day
homosexual parents understandably decry. But it is also based on a "responsible procreation" theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State's justification "lacks a rational relationship to legitimate state interests." Romer, 517 U.S. at 632.3

"Appellees argue that � 29 does not rationally advance this purported state
interest because "prohibiting protection for gay people's relationships" does not steer procreation into marriage. This demonstrates, Appellees argue, that � 29's only purpose is to disadvantage gay people. But the argument disregards the expressed intent of traditional marriage laws -- to encourage heterosexual couples to bear and raise children in committed marriage relationships."

Now, I am glad to see PRO finally state part of my argument correctly when he said "we don't care if they actually do so long as they could".

Indeed, it is based on whether they can procreate and rear children naturally not whether they will do so. Also, unlike with same sex couples, there is no way to know whether infertile couples are actually infertile without unfair state intrusive fertility tests that PRO wants to advocate for straight couples only. When with same sex couples, we don't need to.

Again, its like an insurance policy. Cohabitation, fatherlessness, etc. are bad situations for children. So the state issues Marriage licenses just in case a couple naturally procreates either by accident or by choice without legal and social support in order to regulate procreation/ rearing of children. 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.

Moreover, same sex couples do not have to deal with unintended pregnancies. Society need not worry about the effects of their sexual activity in the same way. Parentage is always planned and chosen and mainly at an age where they would be able to support a family on their own. This is why comparisons between gay cohabitat parents and straight ones show gay cohabitat parents to be superior.

C2. THE POSSIBILITY OF RESPONSIBLE PROCREATION IN PRINCIPLE

For the sake argument, I will pretend that detection of infertility within straight couples is no problem. PRO never addressed my other argument about why we allow the infertile.

Again, 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 procreate and fulfill this particular state's objective; unlike same sex couples who cannot by definition procreate.

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

This means an important governmental distinction between the two relationships would be reasonable in order to continue advancing the state's interest in encouraging responsible procreation and rearing of children to each generation while the state can encourage homosexuals to adopt and stay together with civil unions.

C3. SEPARATE IS EQUAL

Even If the audience did not accept any of my previous arguments, I argued that giving them civil unions would still satisfy the equal protection clause and in terms of public policy . All PRO did to address this is by claiming things I did not say or argue. Other than that, PRO did not provide a counter argument.

D. Sources

Well, What PRO does not seem to get here is that Correlation is an essential part in proving causation. Secondly, When we changed the divorce laws to no-fault and reduced all barriers, it was at least 10 years of research before they began to accumulate data that indicated the impact of that change on an empirical level. Therefore, it is not realistic to find proof of a causal link between redefining marriage and the weakening of marriage within this time frame.

In conclusion, there is no right to gay so-called marriage and no evidence of discrimination. However, even if we assumed there was, I showed how it would be justified in denying it under any scrutiny. In addition, as a matter of public policy, I showed that redefining marriage would be corrosive to progress and potentially detrimental to society.

VOTE CON
XimenBao

Pro

This debate comes down to a very simple argument:
  • The government grants marriage as a right to heterosexual, opposite sex-couples.
  • The government denies that right to homosexual, same-sex couples.
  • This is discrimination.
  • In order for that discrimination to be legitimate, there must be a compelling reason for it.
  • Con’s only reason, procreation, is not compelling on its own and is undercut by his other arguments.
  • Therefore the discrimination is illegitimate, and same-sex marriage should be allowed, affirming the resolution with a Pro vote.

I’ll go in the old order except for potentiality:

Potentiality

Con dropped all arguments against my potentiality points in his R5. This means that my arguments about same-sex couples being able to potentially become parents and raise children, either through medical procedures or adoptions must be accepted. Given this, all Pro’s arguments about procreation fail to exclude same-sex couples given the potentiality standard he’s used for opposite-sex couples. Both same-sex and opposite-sex couples have the potential to have and raise children, thus under his standards both should be allowed to marry.

Vote Pro.

Discrimination:

Con argues that since the states discriminate against both men and women, they’re really discriminating against neither. Call me crazy, but I’d call discriminating against both, discriminating against both.

Con also argues that since the purpose of marriage is procreation, disallowing same-sex marriage isn’t discrimination. This ignores my earlier argument about justification vs denial. Saying there’s a reason rights are extended to one group and not another is a justification for discrimination, not a denial of it.

Marriage as a fundamental right

Con continues his insistence that marriage is a fundamental right for opposite-sex heterosexuals only. Once a right is established for one group, there must be a reason to deny it to others. A compelling reason.

Con cites two court decisions here. One from a 1971 Minnesota Baker v Nelson decision against same-sex marriage, and one from the Supreme Court appeal finding a lack of federal issues to overturn the decision on.

No weight should be accorded the issue of what courts say is current the state of marriage rights, because we’re arguing about what the rights should be. However, if the voter places weight in the cases anyway, my 2008 decision trumps his 1971 decision on the grounds of recency. The supreme court decision was largely a jurisdictional ruling and doesn’t apply here.

Once Con admits marriage is a right, he must defend why he’s discriminating in its application.


Procreation

Con is arguing that procreation justifies the discrimination.

I argued that this is a poor justification, since procreation is not a standard applied to opposite-sex couples, so it’s not just to apply it to same-sex couples.

I challenged Con that, “If he wants to claim that states require this potential, lets see the laws. Not the rationale for old court decisions, but the actual requirements to get married.”

He responded that, “PRO is challenging me to present more case law that mentions this state interest”

In addition to failing to grasp my challenge, Con failed to show any requirements for marriage. in actuality or potentiality, of bearing and raising children. I found a list of marriage requirements by state[1] as well as a source to click through various states for the different laws[2]. Unsurprisingly, nowhere is there found any requirement for fertility, intention, or capability to have children.

Completely unfit, unwilling, and unable opposite-sex couples are permitted to be married with no objections. Con would like to apply those objections to same-sex couples. This is an unfair, unjust reason and not the least bit compelling. This goes beyond fertility and into the realms of child-killers being allowed to marry, while same-sex couples are not because they won’t be good parents.

If that doesn’t capture the absurdity of Con’s position, he argues that requiring fertility tests is an unjust intrusion of state power into individuals lives, but denial of marriage rights based on sex or orientation is fine. It seems that the former is significantly less life-altering than the latter, an indication that priorities are far out of place.

That said, let’s look at the case-law that Con did bring up.

He cites the Nebraska case of CEP v. Bruning from 2006 that decided it wasn’t unconstitutional for the state to ban same-sex marriage. In addition to applying my above arguments about the weight of court cases, note that this court applied a rational basis test rather than a strict scrutiny test as orientation wasn’t a suspect class in 2006. In 2012, in Golinski v. Office of Personnel Management, a federal trial court held that orientation was a suspect class, and thus the CEP v. Bruning case would likely play out very differently today[3]. I like this quote from this more recent federal decision:


Furthermore, to the extent Congress was interested merely in encouraging responsible procreation and child-rearing by opposite-sex married couples, a desire to encourage opposites-sex couples to procreate and raise their own children well would not provide a legitimate reason for denying federal recognition of same-sex marriages.The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parenting, but rather merely serves to endanger children of same-sex parents by denying them “‘the immeasurable advantages that flow from the assurance of a stable family structure,’ when afforded equal recognition under federal law.”



Even if you grant Con that procreation between opposite-sex couples is a desired outcome of marriage, that’s not enough to deny it to same-sex couples because not only does it not promote more opposite sex procreation, but it harms the children of same-sex couples, which turns Con’s entire procreation argument on it’s head and is a reason to vote Pro.


Separate vs Equal

Con claims that I’m putting words in his mouth, assigning him positions he didn’t argue for. Let’s revisit the root of this contention in R3, where Con says,

As long as each gender equally has a choice in going to both schools for both genders and that, interests in creating separateness based on the biological differences grounded in sex and GENDER are a legitimate state interests. Just like with marriage in this situation.


My bold. So when I said that Con conceded that the discrimination against same-sex couples was unjustified and required a separate way to access those rights in civil unions, it was because he argued that the marriage debate here was “just like” when a female was denied access to one school based on gender, and it would have been unjustified discrimination had not an equal school offering her admission been available.

If that is “just like with marriage in this instance,” if there aren’t civil unions then denial of rights based on sex/orientation for the reasons of procreation are not compelling. By Con’s logic, there must be an equal opportunity for marriage rights available to same-sex couples to avoid this.

My argument is the once you’ve gone that far and have given same-sex couples all those rights, there’s no reason to deny the name of ‘marriage’ but for bias. In Con’s case pedagogical theory on same-sex education was the justification for separate but equal access to schools. There is no similar reason here for separate access to marriage rights, and denying one group the social sanction of marriage is not something many would consider equal [4].

Sources
Con's sources have been continually mislinked and fail to show the claimed evidence.

[1]http://www.weddingcram.com...
[2]http://www.themonastery.org...
[3]http://ia600509.us.archive.org...
[4]http://cregs.sfsu.edu...
Debate Round No. 5
2 comments have been posted on this debate. Showing 1 through 2 records.
Posted by XimenBao 4 years ago
XimenBao
Ha, I just noticed I kept saying R1 when I meant the first round of arguments.
Posted by HonestDiscussioner 4 years ago
HonestDiscussioner
Interestingly different arguments against same-sex marriage. Can't say I agree with them, but still, never heard them before.

By the way, kenballer, I'm done my classes tonight, and can accept that debate challenge now. Could you rechallenge me?
4 votes have been placed for this debate. Showing 1 through 4 records.
Vote Placed by 16kadams 4 years ago
16kadams
kenballerXimenBaoTied
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Total points awarded:30 
Reasons for voting decision: mercy points to con. ALSO, KEN, ACCEPT MY FRIEND REQUEST!!!
Vote Placed by t-man 4 years ago
t-man
kenballerXimenBaoTied
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Reasons for voting decision: Con misinterprited Pro's arguements.
Vote Placed by AlextheYounga 4 years ago
AlextheYounga
kenballerXimenBaoTied
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Reasons for voting decision: Con made a very clear reason why he believed same sex marriages shouldn't be, but Pro stated that marriage does not have to produce children. Pro's argument still holds more water based on discrimination.
Vote Placed by ScarletGhost4396 4 years ago
ScarletGhost4396
kenballerXimenBaoTied
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Reasons for voting decision: CON gets conduct because PRO tended to be a bit sarcastic at some points (although it did make the debate a bit enjoyable). The part where the CON boiled down the debate to whether or not children could be responsibly procreated was an effective way of getting at the opponent's case, and the PRO's arguments against the potentiality really won me over, in addition to the opponent's worldview which made completely upholding his own scenario impossible.