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

There is no rational basis for banning gay marriage.

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Post Voting Period
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Voting Style: Open with Elo Restrictions Point System: Select Winner
Started: 11/2/2014 Category: Politics
Updated: 2 years ago Status: Post Voting Period
Viewed: 3,447 times Debate No: 64353
Debate Rounds (3)
Comments (62)
Votes (2)




This is a short debate about gay marriage in the United States. I believe bans on gay marriage cannot be defended, even under rational basis review. When courts apply rational basis review, the question asked is whether the law at issue is rationally related to a legitimate government interest. This is the lowest level of judicial scrutiny. Thus, the issue up for debate is whether bans on gay marriage are rationally related to a legitimate government interest. This should give those against gay marriage an easier time than usual. Good luck!

There are three rounds. The first is for acceptance. The second is for arguments. The third is for rebuttals.

I have made the voting open to members with a minimum Elo of 2500. I also ask voters explain their decision. That should keep randoms from voting and ensure a fair assessment.


Pro gave a brief intro, so I will as well.

I just want to say that I am very much pro-gay marriage. However, Pro has made this debate about whether it is possible for a state legislature to refuse to recognize gay marriage under the rational basis standard of review. This debate is not about the lay definition of "rational," but is rather about the specific standard of review that the Supreme Court has set out for determining whether a law is unconstitutional under the Fourteenth Amendment. Since I'm not allowed to argue yet, I'll define the standard later, but it is a very permissive one. I believe that under proper rational basis review, a state legislature can adopt a rational justification for the distinction the state draws between gay and straight couples (specifically, the "discouraging irresponsible procreation" justification). I believe that if the Supreme Court wants to hold that the Constitution mandates gay marriage it should hold that gay people are a quasi-suspect class and that laws that single them out are subjected to intermediate scrutiny (which is the same level of scrutiny applied for gender-based distinctions).

And with that, I turn the floor over to Pro.
Debate Round No. 1


As noted earlier, this debate is about whether bans on gay marriage pass rational basis review. Con is right that rational basis is a "permissive" standard, but that doesn't mean it's toothless. For equal protection cases (and this is an equal protection case), the Supreme Court has said the standard is whether there is a rational connection between the exclusion created by the challenged legislation and the governmental interests the legislation purportedly advances. [1] So to win this debate, Con must show how excluding gays from marriage has a rational connection to a legitimate government interest. Con plans to argue the "responsible procreation" justification so I'll start there.

1. Encouraging "responsible procreation" is not a rational justification.

To win on "responsible procreation," Con will need to explain how bans on gay marriage promote responsible procreation. That burden cannot be met for two reasons: (1) excluding gay couples from marriage doesn't increase the quantity of "responsible procreation," and (2) straight couples who can't or don't want to procreate are still allowed to get married.

First, straight couples won't procreate more just because gay couples can't get married. No straight couple decides to have a child, or to get married, because gay couples can't get married. The incentives to get married are the same whether gays are excluded from marriage or not. So the number of straight couples who procreate, and the number of straight couples who get married, isn't going to change based on whether gays are excluded from marriage.

Second, straight couples who can't or don't want to procreate are still allowed to marry. Millions of men and women in the United States today are incapable of having children as a result of infertility. Yet each of these men or women could still marry a different-sex partner if gay marriage were banned. For example, births among women age 50 and over are virtually non-existent. [2] [3] And there are over 53 million women in the United States age 50 and over. [4] But these women could still get married if gay couples were excluded from marriage. If the reason gay couples can't marry is that they can't procreate, then why are straight couples who can't or won't procreate allowed to marry?

At its core, the "responsible procreation" justification is incoherent. Excluding gay couples from marriage won't promote responsible procreation because it won't change how many straight couples have children. But what's worse, if we took this "responsible procreation" justification to its logical conclusion, we'd have to exclude infertile straight couples from marriage too (not to mention all the couples who don't want children). Of course, that result is absurd. For these reasons, "responsible procreation" isn't a rational basis for bans on gay marriage.

2. Fostering an "optimal" parenting environment is not a rational justification.

First, excluding gay couples from marriage doesn't stop them from having children; more than 200,000 children in the United States are raised by gay couples. [5] Nor does excluding gay couples from marriage increase the number of children raised by straight couples. As explained earlier, straight couples don't decide whether to have children based on whether gays can get married. So even if children are better off raised by straight couples, which isn't the case, there is still no rational connection between excluding gay couples from marriage and the purported interest in fostering an "optimal" parenting environment.

Second, if marriage creates a better parenting environment for children, there is no reason to exclude children of gay couples. There is nothing special about children raised by straight couples that makes it rational to deny the benefits of marriage to children raised by gay couples. There is simply no explanation -- rational or otherwise -- for denying children of gay couples the benefits of marriage, while giving children of straight couples those benefits. The children of straight couples and gay couples both alike are deserving of the benefits offered by marriage.

Finally, the social science suggests that straight couples don't inherently create a better parenting environment than gay couples. The overwhelming scientific consensus, based on decades of peer-reviewed scientific research, shows that children raised by gay couples are just as well-adjusted as those raised by straight couples. Over 150 sociological and psychological studies of children raised by gay couples confirm that. [6] [7] So straight couples don't inherently make better parents than gay couples. And to say otherwise, in the face of this overwhelming scientific consensus, would be absurd.


Neither the "responsible procreation" nor the "optimal parenting environment" justification is a rational basis for excluding gay couples from marriage. To conclude, I want to take a moment and note that no heterosexuals are harmed by gay marriage. No court in the United States has ever found that a straight couple was harmed by gay marriage. So why ban it? Are there any benefits to banning gay marriage? None that I can think of. Yet bans cause considerable harms, both tangible and psychological, to gay couples and to children raised by gay couples. When these facts are considered together -- (1) the lack of harm to heterosexuals from gay marriage, (2) the lack of benefit to banning gay marriage, and (3) the considerable harms caused by banning gay marriage -- I don't see how bans on gay marriage can possibly pass rational basis review. To quote Richard Posner, the most-cited legal scholar and judge of the 20th century, bans on gay marriage "flunk this undemanding test." [8]


NOTE: I only cited cases by name; they can be found on google scholar if need be.

[1] See Romer v. Evans; FCC v. Beach Communications; Cleburne v. Cleburne Living Center; U. S. Dept. of Agriculture v. Moreno.
[2] National Vital Statistics Reports, Births: Final Data for 2012, available at
[3] American Society For Reproductive Medicine, Age and Fertility: A Guide for Patients, available at
[4] U.S. Census Bureau, Statistical Abstract of the United States: 2012, Table 7, Resident Population by Sex and Age: 1980 to 2010, available at
[5] Gary J. Gates, “LGBT Parenting in the United States," available at
[6] DeBoer v. Snyder, 973 F.Supp.2d 757
[8] Baskin v. Bogan, 766 F.3d 648



== The standard of review ==

Let's start with a little background on the rational basis test. The test was first created as a reaction to the "Lochner era," in which five very libertarian justices on the Supreme Court struck down any law that violated their libertarian ideals of small government. [1] The Court struck down child labor laws, minimum wage laws, and occupation licensing requirements. [1] President FDR was so incensed that he threatened to pack the Court with a bunch of new justices that would stop striking down New Deal legislation just because they personally disagreed with it. In reaction to this political backlash, the Court in Carolene Products devised the rational basis test, so that it would only strike down a law if it involved a "suspect classification" (like race or gender) or it involved a "fundamental right" (such as the right to marry). [1] The test is supposed to be so deferential that if no suspect classification exists, the challenger of the law is supposed to automatically lose in almost all cases. ("Rational basis review is so deferential that it has been called 'minimal scrutiny in theory and virtually none in fact.'") [1] Over one hundred laws have been challenged and upheld by the Supreme Court under rational basis review. [1]

The way the Supreme Court analyzes these cases is it first asks whether a suspect classification appears on the face of the law. The following are recognized "suspect classes": race, national origin, religion, and gender. If a suspect classification exists, the Court applies intermediate or strict scrutiny. If no such classification exists, the Court applies the rational basis test. Sexual orientation is not currently recognized as a suspect classification, so courts apply the rational basis test to gay marriage.

As my opponent points out, the rational basis test (RBT) requires that a law be "rationally related to a legitimate government purpose." However, as the Supreme Court explained in Romer v. Evans, a "legitimate" government interest just means any non-discriminatory purpose, i.e. any justification other than *mere dislike* for the targeted group. And as the Supreme Court explained in Heller v. Doe, "rational" means that one can theoretically conceive of a connection between the classification-at-issue and the "legitimate government purpose." [2]

But more importantly, there are a few other features of RBT that make it so deferential:

(1) The burden is on the person challenging the law, not the state. (As the Supreme Court said in Heller: "A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. . . . A statute is presumed constitutional, and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.") [2]

(2) As the quote above explains, the *actual* purpose of the legislature in enacting the law doesn't matter. Any conceivable non-discriminatory justification is sufficient to save the law, even if it is presented for the first time in the courtroom.

(3) Probably most devastating: the person attacking the law cannot use any evidence to rebut the theoretical justification. They have to show that the theoretical justification is *logically* irrational on its face. (As the Court said in Heller, "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.") [2]

(4) The government does not have to show that the legislation is the best -- or even a good -- way of achieving the "legitimate" purpose. (As the Court explained in Heller, there is no "means ends" testing under RBT.) [2]

(5) The government does not have to prove "solvency," i.e. that the challenged law will actually accomplish the "legitimate purpose" that justifies it. (Under rational basis review, "there is no requirement that the statute actually advance its stated purpose." Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 690 (9th Cir. 1993) (italics in original).

(6) The question is whether the government has any conceivably legitimate basis for *enacting the law,* not whether there was a legitimate basis for *excluding* certain people. (As the Court said in Heller, laws can be deemed "rational" even if they cause "inequality," as long as there was a conceivably rational justification for enacting the law). [2]

As Justice Kennedy is fond of saying, if this standard seems extremely deferential, it was meant to be. As the Court explained in Heller, RBT was enacted to avoid the pitfalls of the Lochner era. ("[R]ational basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. Nor does it authorize the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.") [2]

== Encouraging responsible procreation ==

A state's refusal to recognize gay marriage implicates the Equal Protection Clause because a classification appears on the face of the law: gay people and straight people are treated differently. However, the rational basis test asks only whether there is any *conceivable* justification for enacting a marriage law that includes only straight people. There is obviously a conceivable non-discriminatory justification: gay people cannot naturally procreate with each other. There is zero risk of an unplanned pregnancy in a gay relationship. In contrast, the risk of unplanned pregnancy is an ever-present danger for young couples. The state could claim a legitimate interest in channeling young couples towards marriage to ensure they engage in responsible family planning and do not have children in an irresponsible manner. Under rational basis review, the state does not need to provide any data to prove that the availability of marriage actually reduces teenage pregnancy. Courts cannot require proof that the law works; they must accept the legislature's claims at face value. Any proffered non-discriminatory justification is deemed sufficiently "legitimate" to pass rational basis review.

== Rebuttal ==

R1) Natural procreation

A. Pro says the burden is on me to prove that excluding gay people from marriage promotes responsible procreation among straight couples. However, (1) the burden is always on the person challenging the law, (2) the question for RBT is whether it is legitimate to think that *marriage* promotes family-planning among straight couples, not whether one might think that *excluding gay people* promotes family-planning among straight couples (my opponent flips the RBT inquiry on its head), and (3) the court is not even allowed to look at data ("no courtroom factfinding"), but rather must accept the government's "rational speculation unsupported by evidence or empirical data."

B. Pro says some straight couples can't reproduce. However, this doesn't matter. The Court in Heller says that the solution need not be well "tailored" to the problem (no means-ends testing) and that it need not be drawn with "mathematical nicety," meaning it can be overinclusive. [2]

R2) Optimal parenting

I don't run this argument, and the burden is on Pro to negate "every conceivable basis" for the exclusion (see Heller). So it doesn't matter if optimal parenting is not a good enough justification, as long as there is another "legitimate justification."

== Make sexual orientation a suspect class==

The Supreme Court has stated that when considering whether to establish a new suspect class, it should consider whether (1) there is a history of discrimination against the group, and (2) whether the group is defined by an immutable characteristic ( see Caroline Products). Gay people meet both criteria.

If the Court recognized sexual orientation as a "suspect classification," it would apply intermediate scrutiny, which shifts the burden to the government to defend the law, allows courtroom factfinding, and requires an "exceeding persuasive" justification (as opposed to merely a "legitimate" one) [ see Hogan]. Same sex marriage would undoubtedly be required under intermediate scrutiny, and if the Supreme Court rested its decision on intermediate scrutiny, there is an additional net benefit that gay people will be better protected from a much wider variety of discriminatory laws and actions (e.g. discriminatory hiring by government contractors).

Debate Round No. 2


NOTE: For the record, I agree with Con that sexual orientation should be a suspect class. But that point isn't relevant to this debate. So I'm not gonna address it further.

Con and I agree on most of the specifics about rational basis review. We disagree on how rational basis applies to bans on gay marriage. Specifically, I disagree that bans on gay marriage are "rationally connected" to encouraging responsible procreation. Although rational basis is a deferential standard, it isn't toothless. Even when the group discriminated against isn't a "suspect class," the Supreme Court still examines, and sometimes rejects, the rationale offered by the government for the challenged discrimination. [1] For instance, in Heller v. Doe, Con's main source, the Supreme Court still required "some footing in the realities of the subject addressed by the legislation"; not just anything will pass rational basis review. [2]

1. Con's argument addresses the wrong issue.

This is Con's argument: (1) states have a legitimate interest in promoting responsible procreation, and (2) "marriage" is rationally related to that interest because it reduces unplanned pregnancies.

This argument only addresses whether there is a rational reason to provide the right of marriage, not whether there is a rational basis to exclude gay couples. But this debate isn't about the right of marriage, it's about the exclusion of gay couples from marriage. So Con's argument addresses the wrong issue.

2. Con's argument conflicts with extensive Supreme Court case law.

Con ignores the "exclusion" side of the equation. That approach disregards extensive Supreme Court case law. In equal protection cases, the focus of rational basis review is the "exclusion" created by the challenged legislation. The inquiry is whether there is a rational connection between the "exclusion" and the govenment's purported interest. [1] [2] [3] [4]

For example, in Cleburne, the Supreme Court examined a city's interest in denying housing for people with disabilities. The Court didn't consider the interest in allowing housing for others. Instead, the Court's analysis explicitly focused on the "exclusion" of those with disabilties. The issue wasn't whether allowing housing for people without disabilities was rationally connected to the city's interest; the issue was whether the "exclusion" of those with disabilities was rationally connected to the city's interest. [3]

Likewise, in Moreno, the Supreme Court examined the "exclusion" of unrelated persons from food stamp benefits. Under rational basis review, the Court did not consider the government's interest in providing food stamps to related persons. Instead, like in Cleburne, the inquiry was whether the "exclusion" of unrelated persons was rationally related to a legitimate government interest. [4]

, the one case cited by Con, also considered "exclusion." In Heller, the mentally retarded were "excluded" from a lower standard of proof, for involuntary committment purposes. Again, the issue was whether the "exclusion" of the mentally retarded was rationally related to a legitimate governnment interest. [1]

The issue in equal protection cases is always whether the exclusion is rationally related to the government's interest. Banning gay marriage is an equal protection issue. So here, the correct issue is whether "excluding gays from marriage" is rationally related to responsible procreation, not whether the "right of marriage" is rationally related to responsible procreation. Thus far, Con has ingored this "exclusion" side of the equation.

3. Con's argument ignores the fact that banning gay marriage doesn't give straight couples anything.

Banning gay marriage doesn't grant any marriage benefits to straight couples. The only effect that bans on gay marrriage have is excluding gay couples from accessing marriage benefits that straight married couples already enjoy. Because marriage bans don't give straight couples any benefits they didn't already have, marriage bans have no connection to the government's interest in responsible procreation.

Banning gay marriage also has no connection to responsible procreation because gay couples can't procreate. Since gay couples can't procreate, they don't affect the amount of procreation, responsible or irresponsible, that occurs. Marriage bans thus cannot have any affect on procreation, responsible or otherwise.

4. Excluding gay couples from marriage has no rational connection to reducing unplanned pregancies.

Con says banning gay marriage is rationally connected to reducing unplanned pregnancies. The argument goes like this: Straight couples tend to produce unwanted children via unplanned pregnancies, so the state should give them marriage benefits. But gay couples can't produce children, wanted or unwanted, so the state shouldn't give them anything. In other words, straight couples get drunk and pregnant, producing unwanted children; their reward is the right to marry. Gay couples don't produce unwanted children; their reward is to be denied the right to marry.

This so-called "justification" isn't rational; it's absurd.

Con's argument leads to the absurd result where straight couples are rewarded for being irresponsible, while gay couples are harmed for being responsible. Given this absurd result, Con's "responsible procreation" justification cannot be a rational basis for banning gay marriage.

To be sure, gay couples can't procreate. But that fact alone has no rational connection to reducing unplanned pregnancies. Straight couples don't decide whether to use birth control, whether to have children, or whether to get married based on whether gay couples can get married. The incentives for marriage -- the vast litany of legal benefits that marriage affords -- are the same whether gay couples can get married or not.

How many straight couples will say to themselves, "because gay couples are allowed to get married, let's get drunk and have an unplanned pregnancy"? Ignoring the absurdity of the question for a second, the answer is zero. Excluding gay couples from marriage doesn't change how or when straight couples procreate, nor does it change how or when straight couples get married.


Con cannot win this debate for three key reasons: (1) banning gay marriage won't affect whether straight couples get married because the incentives to get married are the same whether gays are excluded from marriage or not; (2) banning gay marriage doesn't provide any benefits to straight couples that they didn't already have; and (3) banning gay marriage doesn't reduce unplanned pregnancies because excluding gay couples from marriage doesn't affect whether a straight couple will use birth control or have an unplanned pregnancy.

I have shown throughout this debate that there is no rational connection between excluding gays from marriage and the state's interest in encouraging responsible procreation. I have also shown how Con's "responsible procreation" argument leads to the absurd result where straight couples are rewarded for being irresponsible, while gay couples are harmed for being responsible.

For all the above reasons, there is no rational basis for banning gay marriage. I urge a vote for Pro.


[1] Romer v. Evans, available at; Lawrence v. Texas, available at; Village of Willowbrook v. Olech, available at
[2] Heller v. Doe, available at
[3] Cleburne v. Cleburne Living Center, available at
[4] U.S. Dept. of Agriculture v. Moreno,


== Overview ==

First, luckily for me (since the rest of the debate is going to be kind of messy), Pro drops my final argument from last round: that there is a net benefit to holding that bans on gay marriage pass RBT because such a holding would force the Supreme Court (specifically the swing-voter: Justice Kennedy) to rest the Court's decision on intermediate scrutiny and declare sexual orientation to be a suspect classification [if the Court wanted to require states to recognize same-sex marriages]. There is thus a net benefit to voting for the Con interpretation of RBT, i.e. broader Constitutional protections would be provided to gay people in the longer term (because they would get intermediate scrutiny of any law that treats them differently). This alone is a sufficient reason to vote Con because at the very least, my reading of RBT in this context is a plausible reading (given that many lower courts have agreed with it), and so this argument -- that the Supreme Court should rest on intermediate scrutiny, not RBT -- provides a policy reason to prefer my interpretation. Vote Con for this reason alone [note: don't punish me for Pro failing to understand that I was running this as a net benefit to voting Con; he's the one who made the debate so short -- only 2 rounds].

Second, Pro continues to misinterpret RBT, which I'll explain below. However, keep in mind that any doubts are resolved against Pro. Under RBT, the BOP is always on the person challenging the law, and the law is accorded a "strong presumption of validity." Therefore, Pro bears the BOP in this debate, and any doubts are resolved in Con's favor.

== Rebuttal ==

R1) Pro says we are debating bans on gay marriage, not marriage itself. However, in states that "ban" gay marriage, the state has simply chosen to extend the right to marry only to unions between "one man and one woman." The Supreme Court generally treats cases differently where rights are granted to everyone -- then taken away from only one group -- from cases where rights are only conferred on a single group from the outset (see Romer). We are in the latter scenario (which is treated as less suspect) because marriage has simply only been extended to straight people, rather than having been granted to everyone and then taken away from gay people.

R2) I largely agree with Pro here, but he's missing a key nuance. I know because I made the same mistake when recently writing an amicus brief to be filed in one of the same-sex marriage cases that were supposed to reach the Supreme Court (but got denied certification this term). My supervising attorney got really mad at me for misconstruing the RBT standard in the same way my opponent is doing (by requiring the defender of the law to prove that excluding gay people from marriage causes straight people to use contraceptives more often).

My opponent cites four cases to prove that the Supreme Court looks at whether the exclusion itself has a rational purpose. I agree. But the Supreme Court does not require that the exclusion *further* the government's asserted purpose because there are two possible ways to justify a challenged exclusion: either (A) the exclusion itself accomplishes some policy purpose, *or* (B) the policy purpose behind the law does not justify extending the law to the excluded group. While my opponent points out cases (e.g. Cleburne and Moreno) that involved Scenario A arguments, there are also cases that deal with Scenario B.

For example, the Supreme court case Railway Express v. New York involved a New York law prohibiting advertisements on the side of trucks. [1] However, New York provided an exception: the owner of the truck could advertise his or her own products (but not someone else's). Someone challenged the *exception* (not the original law) and said the exception should apply to everyone, or not at all. The Court reasoned that the exception was based on a legitimate desire to accommodate property owners, and such a rationale did not extend to non-owners.

My argument follows from Railway Express, where the rationale for granting an exception to owners did not justify extending the exception to non-owners. Similarly, the rationale (that I offer) for extending marriage only to straight people (encouraging responsible procreation) does not justify extending it to gay people (because they cannot have unplanned pregnancies). We are in Scenario B: where the asserted policy purpose underlying the law does not justify extending the law to the excluded group. My opponent keeps trying to make me prove Scenario A: that the exclusion itself accomplishes the asserted purpose. But that's not the only option available to me.

I'll give a second example. In Dandridge v. Williams, Maryland had put a cap on welfare, so that people earning more than $250 a month did not qualify. [2] A family who earned barely more than the cap challenged the law. The Supreme Court held that the justification for the law was to limit welfare only to the very needy. While it might have been irrational to exclude people earning $260 per month, the government still had a legitimate purpose in enacting the law. Again, we are in Scenario B: the law's purpose was to have some cap on welfare eligibility, and this purpose was incompatible with extending welfare to other groups of people. If the Court had required proof under Scenario A -- i.e. that it was rational to include people earning $249 per month in welfare but exclude people earning $251 per month -- the welfare eligibility requirement would have failed RBT. But the Court said it passed RBT (under Scenario B).

Dandridge also stands for the proposition that there is no entitlement to a government benefit. Just because one group gets a benefit does not mean that another group is automatically entitled to it. So just because straight people get marriage (to encourage them to procreate responsibly), that doesn't mean that gay people are also entitled to the same benefit (under RBT). Dandridge provides the basic rationale for Scenario B: that just because the state passes a law to benefit only one group does not mean we can presume that the state was trying to harm the excluded groups.

So, in light of this nuance that Pro has missed, I essentially have two responses to his R2:

(1) Under Scenario B, all I have to show is that the "legitimate purpose" that I advance justifies extending marriage only to straight people. And that the same purpose does not justify extending marriage to gay people. Since I have proven that it is rational to believe that the benefits of marriage (e.g. tax incentives) will channel young people into marriages, which will in turn encourage more responsible procreation, I have demonstrated a justification that applies to straight people, but not gay people (because gay people cannot have unplanned pregnancies). I have therefore demonstrated a non-discriminatory rationale for the distinction drawn between gay and straight people under marriage laws. That's all I have to do to prove that the law survives RBT: prove a non-discriminatory purpose for the distinction that is drawn (see Romer).

(2) Alternatively, if my opponent wants to force me to provide a "Scenario A" type rationale, I will: saving tax revenue. The primary benefit that married people get from the government is large tax breaks. These tax breaks deprive the state of quite a bit of potential revenue. If the theoretical justification for marriage is to encourage responsible procreation, then the "legitimate justification" for excluding gay people from marriage is to avoid wasting tax revenue to subsidize the relationships of a group of people who cannot naturally procreate.

R3) I answered this above. Pro just tries once again to force my argument into Scenario A.

R4) Again, Pro just tries to make me argue Scenario A. Pro also -- once again -- demands evidence that marriage reduces unplanned pregnancies, even though looking to *any* evidence is explicitly forbidden under RBT, and the court must rely only on the state's "rational speculation, unsupported by evidence or empirical data."

Pro also makes this new argument that the law punishes gay couples for being "responsible." However, that's not the case. Gay couples can't have unplanned pregnancies even if they have wild, irresponsible, unprotected sex with each other. This argument is a non-starter.

So the real question is: has Pro proven that "encouraging responsible procreation" is not a legitimate purpose or that it is wholly irrational to think marriage and its attendant incentives encourage *some* straight couples to engage in more responsible procreation (either by discouraging premarital sex -- e.g. teenage pregnancy -- or by encouraging family planning -- e.g. using the pill until one is ready to have kids). I have shown that it is not illogical to think that marriage provides an *incentive* for more responsible procreation. Under RBT, you (as the judge) are required to take my "rational speculation" at face value. You can't look to statistics or require that I prove that marriage *actually* does any of the things I claim (see Levald). Under this ridiculously permissive standard -- that scholars have called "minimal scrutiny in theory and virtually none in fact" -- I win. Any other outcome would be you (as judges) trying to judge the "wisdom or fairness" of every law, but the Court explained in Heller that it was no longer willing to do so since it was worried about a repeat of the Lochner era. To avoid too much judicial intervention in the political process, the Court has explicitly said (in Heller) that RBT will often uphold "unfair" laws. This is the price we must pay for separation of powers.

[2] 397 U.S. 471 (1970)
Debate Round No. 3
62 comments have been posted on this debate. Showing 1 through 10 records.
Posted by casebash 2 years ago
"So when the commentators aren't arguing that these laws fail to meet the casual definition of exclusive..." - Please ignore the when in this sentence.

It is a shame that the debate was only two rounds as it didn't really give you a chance to respond to Con after they clarified their standard. In terms of arguments presented, I thought that this was a clear win for Con. One thing that might change my mind is if I were to decide that Con's two non-exclusivity tests should ignored for only being introduced in the rebuttal stage. That said, you seemed to accept the burden of proof being on you, so it was your responsibility to proactively argue your case. It wouldn't be sufficient to simply object that Con's argument was too vague (after his tests were excluded).
Posted by casebash 2 years ago
@Nymphomaniac: "Personally, I thought you made a good argument for not interpreting it as "exclusion" under precedent, but I didn't think it was persuasive, given we're talking about "banning gay marriage," not "granting straight couples marriage," at least if we're talking semantically."

"Banning gay marriage" has the connotation content of excluding people, but denotatively it only means that the right to marriage hasn't been granted to them. Accepting your debate does not mean that bluesteel has to accept any connotations you've attached to your terms as being accurate.

I'll move onto whether laws that don't allow homosexuals to marry are automatically "exclusive". Under the casual definition of "exclusive", that the law seems to make a mostly arbitrary (or unjustified) exclusion, this is indeed the case.

However, this doesn't answer the question of whether the law is exclusive for the purposes of determining strict scrutiny. In point 6 of Con's explanation of the burdens imposed by strict scrutiny he argues that "The question is whether the government has any legitimate basis for *enacting the law*, not whether there was a legitimate basis for *excluding* certain people". At this stage it was still vague exactly what burden Con was claiming, but he clarified this in his last round. Here he clarifies that he means that instead of meeting standard A - justifying the exclusion, he can meet standard B) providing a policy purpose that doesn't justify extending the law to the excluded group. So, under this standard, a law is rejected (for the purposes of being exclusive) if it fails both test A and test B.

So when the commentators aren't arguing that these laws fail to meet the casual definition of exclusive, they are arguing that it passes at least one of the two "non-exclusivity" (for lack of a better name) tests (A and B). To win the debate, you had to argue either that it doesn't pass either test or that Pro's criteria is invalid.
Posted by bladerunner060 2 years ago
"According to Plaintiffs, the purpose is evident by the timing of the statute, which was passed in an emergency session near the time that DOMA was passed and immediately after and in response to a
Hawaiian court"s pronouncement in Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235
(Haw. Cir. Ct. Dec. 3, 1996), aff"d 950 P.2d 1234 (Haw. 1997), that same-sex couples
should be allowed to marry. "
Posted by bladerunner060 2 years ago

I was relying not only on my own reading (" As indicated in Part V.A. above, the court finds that
the law impermissibly interferes with a fundamental right, and Defendants failed to
satisfy strict scrutiny. "), but also on sources like this:

But yes, there was a rational basis aspect--yet that aspect was used not as a general point, but in the same vein as the "anti-hippie" statute, because the timing and reasoning was suspect.
Posted by bladerunner060 2 years ago
On the quote-mining in my RFD, I was indeed referencing the case you were talking about. But I did say that IIRC it was strict scrutiny--thank you for the clarification.
Posted by bluesteel 2 years ago
But yeah Posner is definitely not applying a RBT analysis to reach that conclusion. Not a single rational basis case is cited in the opinion, and he doesn't have a "rules" section of his opinion outlining the traditional rational basis approach.
Posted by bluesteel 2 years ago
Oops, I left out the key paragraph where Posner says why it's okay for him to apply his new strict-scrutiny-esque approach:

"Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction"that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended"is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases."
Posted by bluesteel 2 years ago
its exclusion of other, very similar groups is indicative of arbitrariness.

== tldr; Posner is saying that he is going to apply a brand new approach for this case that the Supreme Court has never sanctioned, but the four questions posed are essentially going to be apply something akin to strict scrutiny. However, Posner attempts to insulate this portion of his decisions from further review by the Supreme Court by stating that his approach is permissible because the law even fails rational basis review, so he can apply whatever test he wants and it doesn't matter ==

I think you're both right in a way. There is a passing mention by Posner that a gay marriage ban fails RBT, but there's almost no analysis offered under an RBT framework. Posner evaluates all of the state's proffered justifications *not* under RBT, but rather under his new four-question-framework which is more akin to strict scrutiny.
Posted by bluesteel 2 years ago
Our questions go to the heart of equal protection doctrine. Questions 1 *656 and 2 are consistent with the various formulas for what entitles a discriminated-against group to heightened scrutiny of the discrimination, and questions 3 and 4 capture the essence of the Supreme Court's approach in heightened-scrutiny cases: "To succeed, the defender of the challenged action must show "at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." " United States v. Virginia, supra, 518 U.S. at 524, 116 S.Ct. 2264 (1996), quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982).

The difference between the approach we take in these two cases and the more conventional approach is semantic rather than substantive. The conventional approach doesn't purport to balance the costs and benefits of the challenged discriminatory law. Instead it evaluates the importance of the state's objective in enacting the law and the extent to which the law is suited ("tailored") to achieving that objective. It asks whether the statute actually furthers the interest that the state asserts and whether there might be some less burdensome alternative. The analysis thus focuses not on "costs" and "benefits" as such, but on "fit." That is why the briefs in these two cases overflow with debate over whether prohibiting same-sex marriage is "over- or underinclusive""for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, underinclusive in extending marriage rights to other non-procreative couples. But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of ot
Posted by bluesteel 2 years ago
3. Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole? Age is an immutable characteristic, but a rule prohibiting persons over 70 to pilot airliners might reasonably be thought to confer an essential benefit in the form of improved airline safety.
4. Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government's purported rationale for the policy implies that it should equally apply to other groups as well? One way to decide whether a policy is overinclusive is to ask whether unequal treatment is essential to attaining the desired benefit. Imagine a statute that imposes a $2 tax on women but not men. The proceeds from that tax are, let's assume, essential to the efficient operation of government. The tax is therefore socially efficient, and the benefits clearly outweigh the costs. But that's not the end of the inquiry. Still to be determined is whether the benefits from imposing the tax only on women outweigh the costs. And likewise in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes.
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