Same-Sex Marriage Should Be Legal
Last updated: February 22, 2017
In light of the recent victories of the LGBT rights movement in the U.N. Petition supported by almost 70 countries, including the entire E.U. and the United States, and the decriminalization of homosexuality in India, it is time now to examine the next step towards granting this minority equal rights.
With only 7 countries and 6 states from the U.S. permitting same-sex marriage and another 20 or so permitting civil unions, this issue is far from resolved.
Proposition believes marriage, not just civil partnerships, not just decriminalization, is a human right which is being denied to the LGBT community. We acknowledge that it is hard to expect many countries that criminalize LGBT behavior, some even as a capital offense, to make the huge leap towards legalizing same sex marriage, but we believe this should be end goal in these countries.
The time is always now to end this vicious pattern of discrimination against homosexuals citizens. To legalize same sex marriage is to award the right of marriage to every citizen and having citizens be viewed as equals in the eyes of the government. While same-sex marriage is illegal, anti-gay legislation is easily disguised when laws only pertain to married persons, as was the case of Mary Coughlan's amendment in Ireland [[http://www.rte.ie/news/2004/0311/gay.html]]. Once it is made legal, government attempts to undercut the rights of same-sex couples will be transparent, and thus more easily dealt with.
First and foremost, the opposition recognizes that this debate is not about the 'rightness' or 'wrongness' of homosexuality. As our positive case substantiates below, there exists reasonable disagreement as to whether or not homosexuality is morally acceptable.
Second, we challenge the proposition to show us that a refusal to grant homosexuals the right to marry is in any way comparable to Apartheid legislation or the Jim Crow laws which both limited not only the occasional 'social' right, but a broad swathe of socio-economic rights relating to education, association, public facilities, employment, political emancipation, and so on. Any psychological and socio-economic consequences that resulted from these laws are entirely and absolutely incomparable to the non-legalizing of same-sex marriages; these laws were designed to control resource allocation and thus impair the prosperity and growth of a people, not to 'safeguard' a particular cultural institution. The cases are categorically different. Interestingly, the only serious social science studies of the demand for same-sex marriage (based on the a variety of countries as well as specific states in the USA) shows that such demand seems fairly small [[Gallagher & Baker: 2006]]. It seems unlikely to us that this rather small issue is having profound sociological, psychological and economic effects on people's lives.
Finally, while we concede that ideologically driven legislators will often find ways in which to manipulate legislation to damage the interests of others, we feel we should consider the issue realistically. In most cases homophobic legislators will only feel strongly that homosexuals should not 'impose' on their personal cultural sphere by actually marrying. Thus, we believe, the majority of legislators are not going to actively snipe homosexuals over and above that which is required to keep them 'away' from marriage. It is quite unclear from proposition's argument how they feel legislators might actually try to undercut homosexuals' rights, and citing one scandalous piece of legislation (that can itself be openly debated as either homophobic or not) is simply not sufficient.
Indeed, we feel that homophobic legislators might be even more tempted to actively remove the rights of homosexuals in marriages if they feel that they have been given no choice in the matter.
Generating buy-in from legislators and citizens alike will be a central argument in our substantive case.
Importance of Government
The government displeases citizens whenever it grants rights to a group that is seen as an "other," but the discomfort of some citizens is not reason enough to deny people any of the rights of membership of a society.
The proposition has a very simple line on Governmental obligations - a Government should maximize equality at the cost of partisan groups' feelings. This is interesting not least because Governments, in all parts of the world, almost never behave this way (take redistributive programs for example - the equality of income is hardly tampered with by Government). One of the reasons they do not behave this way is that in democracies we do grant some value to the interests and opinions of the majority, even if we try to control the 'rabid-ness' of these interests and opinions. Similarly, we also try to make Governmental decisions that produce acceptable utilitarian outputs.
If it is the case that the decision to legalize same-sex marriages is actually only margianally beneficial in a small number of cases but there are costs to the "homosexual equality" project as well as harms to social, cultural and religious groups, we wonder about the legitimacy of legalizing same sex marriage.
Proposition's argument about the 'importance of government' does not present ANY evidence for the harms they claim gay persons routinely and widely suffer, like the claim that 'same-sex couples feel disenfranchised and less willing to participate socially' or the more hilarious suggestion that existential angst consume gay pesons who do not know how to 'explain their relationship' (try the commonly used hetero- and homo-sexual term 'partner'?). It is tempting to guess that these claims stem from a conservative, homophobic camp (no pun intended), not a liberal one! We would happily concede these harms if Team USA can produce solid evidence of gay persons hiding in their houses, or of would-be socialites unwillling to 'participate socially'. Or evidence of the apparently huuuuuuuge burden suffered around the dinner table when Jim declares that Tom is his 'life partner' rather than his 'husband'. For now, these harms are mere parternalistic - patronising, even - assertions on *behalf* of the gay community.
Expanding the Right to Marry Serves the State
Marriage decreases legal ambiguity for individuals in a society, and lessens the burden upon the state to clarify ambiguities that result. Marriages are a mechanism to clarify next of kin, responsibilities toward children, the people who are impacted by a legal will upon the death of a spouse, and many other interactions that individuals have between themselves, each other, and the state. [[http://articles.latimes.com/2008/may/22/opinion/oew-davidson-lavy22]] Absent that, the legal system would be strained beyond belief in an effort to untangle the messes that would be the result of having no legal recognition of marriage. Legalizing same-sex marriage will lessen this burden further, but it is a secondary concern when facing the rights and freedoms of the individuals in question.
The proposition talks of marriage being crucial to the legal system, and that without marriage we would be 'strained beyond belief' trying to 'untagle the messes' that would arise. Of course this hyperbole, not in any way reflected by their source (check it if you don't believe us!) is (1) false and (2) general to all marriages, not specifically homosexual ones. Considering that only around 1% of the US population is openly homosexual [[http://www.adherents.com/adh_dem.html]] (and let's face it, that isn't going to increase very much if we control for 'closet' homosexuals) we see that legalizing homosexual marriages will have a tiny impact on the state's burden. This point is simply unsubstantiated and irrelevant.
It is almost laughable to read and re-read the proposition's serious (?!) contention that "Marriages are a mechanism to clarify next of kin, responsibilities toward children, the people who are impacted by a legal will upon the death of a spouse, and many other interactions that individuals have between themselves," Does a gay person in a civil union - or in a one night stand, for that matter - really not know who his or her next-of-kin is?! Does a dad need to be married to another man to know his legal (and social) parental responsibilities in relation to his kids from a previous relationship?! These arguments fall far short of constituting an independent reason to legalise same-sex marriage.
Besides, many of the potential complications that are legitimate (e.g. one man living with another - his partner - over a lifetime, without marriage recognition) can be dealt with through other legal instruments, so same-sex marriage is not essential. The Civil Unions regime in the UK, for example, distribute *identitcal* beneifts on partners. Similarly, in South Africa, both gay and straight couples can choose either civil unions or marriage - there is no difference, other than symbolism, in the legal consequences.
We conclude, then, that the legal regimes which proposition imagine to be at stake in this debate, are not at stake. This leg of their case falls flat.
More than just gay rights
In the transgender community in Australia, the law, previous to Feb. 2003, allowed transgender individuals to recognize themselves as the gender they had become except for in marriage. In the famous case of Kevin and Jennifer, it was found to be unconstitutional to assign someone's gender based upon their designated gender at the time of their birth. [[http://www.austlii.edu.au/au/cases/cth/family_ct/2003/94.html]] Due to the Marriage Act of 1961, legal marriage is still held to be only between a "man and a woman". This means that in Australia Post-operative transgendered persons may marry persons of the opposite gender to their current gender. Pre-operative transgendered persons are not allowed marriage and those who change their gender after marriage are still in a legal gray area. We see that this puts undue stress on transgendered persons to obtain very expensive surgery to change their gender if they wish to have a legally recognized marriage.
Intersexed individuals are those persons whose sexual identity is ambiguous in relation to legal requirements either because their genitalia/gonads are doubly gendered or missing or because they have mixed primary or secondary sexual characteristics. Since at least 1 in 1000 births show intersex characteristics [[http://www.isna.org/faq/frequency]], this is a problem affecting significant portions of any society. Mandating gender-difference for marriage creates significant problems for these people. in those places of the world where marriage is seen as paramount, parents or doctors may perform surgery to "normalize" the appearance of genitalia. This is estimated to be performed for one to two out of every 1000 live births. The size of one's clitoris or penis should not be the basis for a medical procedure without the will of the patient. Columbia has reflected this in their decision to prevent such surgeries from occurring [[http://www.isna.org/node/97]]. The fear of not being able to marry off a child often leads to operations which are "inadequate" and need to be repeated later in life. [[http://findarticles.com/p/articles/mi_m0CYD/is_13_36/ai_76877656/]]
Yes, there is a lot of confusion around transgendered, and intersexed, persons' rights, identities and social status, and entitlements as human beings. We concede all of that.
But what does that have to do with the debate at hand?
The only rational link we can impute to the proposition team - since it is unclear from their superflouous entry - is the embedded (but, unhelpfully unexpressed) claim that same-sex marriage should be legalised in order to help improve the social and legal status of the transgender and intersex communities.
But that is nonsense! For one thing, if same-sex marriage is legalised, we will still - rightly or wrongly - not be accomodating persons who do not fit the straight-gay dichotomy, or the male-female one, with the gay and heterosexual marriage regimes that would then be on the statute books. Proposition must show evidence, or at least argue why it is *likely* that, once same-sex marriage is legalised, it will be a mere small step towards marriage regimes that allow for other genders and sexualities to also be accomodated.
At any rate, at best this argument is an extremely weak tangential *potential* benefit for a very small minority - transgendered and intersexed persons - and so it is a weak independent reason for legalising same-sex marriage.
We reject it as an unconvincing, and unsubstantiated, red herring.
Inadequacy of Alternative Categories
In many countries, certain rights are tied to the recognition of marriage. Often, same-sex couples cannot sponsor foreign spouses for green cards [[http://www.thedailybeast.com/blogs-and-stories/2009-04-15/gay-lovers-in-exile/]]. In the U.S., they lose the tax benefit of marriage as a status when filing taxes and losing significant amounts of money each year, in effect being fined for having a same-sex partner rather than engaging in heterosexual marriage [[http://www.tressugar.com/2882164]]. Adoption and custody rights are often made more complicated by the restriction on same-sex marriage. While married couples can adopt and convey custody to their partner when they die, same-sex couples find this impossible in many countries, from Italy to Chile. Their children are removed from their homes because, since they are denied marriage rights, they have no legal guardianship. These deficiencies in the provision or rights to same-sex couples are only scratching the surface of what is denied to same-sex couples.
First, civil unions are not inherently different in the rights and burdens they distribute, compared to marriage. This is contingent on the civil union legislation of a particular country. Civil partnerships in the UK and in South Africa, for example, distribute the same benefits and duties as do marriage. So it is perfectly possible to design parallel legal structures to those of marriage. This part of proposition's case is factually false.
Second, it is also false to suggest that questions around custody, and the like, cannot be equittably dealt with between straight couples and gay gouples unless all couples enter into marriage regimes. For one thing, a lot of administrative and social barriers to custody persist EVEN WHEN marriage is extended to gay persons. Gay couples in South Africa, including married ones, sometimes struggle to access parental rights due to administrative and social hurdles. This evidences the fact that same-sex marriage is NOT the panacea for substantive equality. Conversely, gay persons' right to adopt children, by way of example, was legally recognised before gay marriage was legalised in South Africa. This speaks to the fact that each of these social policy issues can be, and tend to be, independently debated and decided. Proposition is, without evidence, assuming that there is a necessary connection between them. Evidence of widespread cases in which these battles are won AS A PACKAGE have not been presented.
Finally, and perhaps most seriously, is the worry that gay persons are excluded from the symbolism that constitutes the label 'marriage'. We do not think that the symbolism constitutes a serious enough harm - it is the associated legal benefits of the institution of marriage that is a more important, tangible issue of harm. And, as we have argued, these associated benefits CAN be enjoyed under others bits of legislation. The right to the symbolic value of the word 'marriage' is not self-evident, and neither is the symbolism itself obvious to us - perhaps Team USA would like to explain what's in a word?!
Lack of legal category reinforces negative stereotypes
Much of the fervor against same-sex marriage relates to same-sex adoption. Stereotypes of gay people as influencing youth or recruiting them towards a gay lifestyle have long been part of the propaganda of the anti-gay movement. [[http://www.guardian.co.uk/society/2008/nov/12/gay-adoption]] Marriage will ensure adoption rights for same-sex couples, and the myths will be debunked as the practice becomes more common. An excellent example is that of homosexuals serving in the military; where it was thought that homosexuals would not make good soldiers, today they serve with distinction in dozens of militaries across the world.
Without the prospect of legal marriage, society also reentrenches itself in negative stereotypes of LGBT people as hypersexual, not interested in anything social that is not sexual. Marriage allows a couple that is sexually committed to have a social category that encompasses more than their sexual intimacy. LGBT indivuals are denied this right, and are forced to categorize their de facto spouse as a mere "partner". Marriage is important towards the ultimate goal of equality not merely because it bestows equal rights but because it forces traditional mindsets to reevaluate the nature of homosexual relationships.
The proposition presents no evidence for their first assumption other than an article in the guardian where two thirds of surveyed people believe that homosexuals should not be allowed to adopt children. But the very article they cite does not speak to the issues the proposition raises. The participants in the survey suggest that people believe homosexuals provide imbalanced parental role models and violate traditional family paradigms. As wrong as these opinions may be, they are a far cry from claims that homosexuals lure youths into homosexuality or participate in unsavoury sexual behaviour. Marriage will almost certainly not change the adoptions rights of couples, as the very article they cite suggests that there exists no current problem in relation to adoption agencies or legislation (outside of Catholic adoption agencies who, being private institutions, would not be compelled to change their position anyway). A failure to meaningfully change the already unproblematic status quo means this point is moot.
The second assumption is that the alleged wide spread beliefs that homosexuals are hypersexual, infidelious and promiscuous have formed because they cannot marry. This is somewhat circular considering the proposition's earlier claim that people think "gays can't marry because they always fool around", and we find no compelling source for these opinions (the vicious cycle has to start somehow...) We contend that these opinions simply don't exist, and even if they did, would relate far more to hundreds of years of *active* discrimination (sending Oscar Wilde to jail for homosexuality) and social, cultural and religious 'norms' than to same-sex marriages.
Governments should not discourage people from their identity
The question is, why? Why do these people choose to deny their homosexual desires? Because the society puts too high a price on coming out of the closet. You faced by ridicule and stigma amongst your peers, which while shameful, is still something people can endure. The higher price you pay is being forced to give up your dreams of a family. Its a popular joke that women start planning out their weddings when they are 10, imagine 5 years later being asked to sacrifice that wedding just to accept your own identity as a lesbian? Knowing you will be denied marriage, you have to choose to sacrifice all you dreamed about for your traditional wedding, for your quaint family life, your children, and settle instead for 'the gay lifestyle' of multiple sex partners, a bachelor's pad, and disease that society wrongfully tells you is the inevitable fate for homosexual.This dichotomy is false, and no one should feel forced to choose between these options.
This is possibly why we see so many stories of married men and women finally coming out at 50 and leaving in their wake broken families; or the champions of the anti-gay movement, the Ex-gays, who went through conversion therapy and turned straight so they could have a family; or even unsatisfied broken individuals who even until their death live an unfulfilling lie.
Proposition presupposes a number of things about homosexuals. Number one, it presupposes the very attitude that proposition says they want to remove from society - the belief that homosexuality is somehow different from heterosexuality. Many homosexuals simply do not face the 'moral' and 'sociological' quandries that proposition believes they do. In many cases homosexuals never even make a choice about being part of the heterosexual community or the homosexual community (assuming that such black and white social groups even exist - they really don't).
Next, it presupposes that homosexuals end up, with a greater frequency than heterosexuals, living sexually debauched lives, and that this greater frequency is somehow the result of their not being able to legally marry.
Both of these points are flat out wrong - homosexuals are just as capable as heterosexuals of being faithful or of being promiscuous, and many married couples still experiment with infidelity [[http://en.wikipedia.org/wiki/Kinsey_Reports#cite_note-15]].
The very notion that the status quo forces homosexuals into apparently awful 'the gay lifestyle' not only belies proposition's knowledge of the subject, but is, as we will now show, wrong.
Proposition assumes that the reason homosexuals may be afraid to come out is inherently related to their 'legal' losses, and not to the way in which society 'perceives' them. We feel this is ludicrous. Coming out as a homosexual in no way 'legally' precludes you from marriage - you can still marry so long as you marry heterosexually. It is not the case that the moment you say 'I'm gay' the state department (or home affairs) ticks you off on the 'big bad list of homosexuals'. Considering this, it seems a non sequitur to argue that homosexuals stay 'closeted' because of the legal losses they face. Much more important, we would argue, is the social ridicule they face, and this social ridicule is likely to worsen if homosexual marriage is prematurely legalized.
In essence, proposition's argument - which is again not backed up with evidence (show us proof of 'the gay lifestyle' of multiple sex partners, a bachelor's pad, and disease that society wrongfully tells you is the inevitable fate for homosexual) - does two things for our opposition case: first, it showcases how deep homophobia can run, such that even a group advocating the legalisation of same-sex marriage may persist with homophobic attitudes way after same-sex marriage is legally allowed ; and, second, related to this, the complex tissue of social harms that gay persons do suffer - such as the baselss stereotyping indulged in by Team USA - cannot be dealt a fatal blow with legalising same-sex marriage; it lies elsewhere, such as education.
This means that Team USA rightly identifies a problem: social stigma suffered by gay persons. But prescribe a medicine that will not make the headache go away, as the homophobic spirit of their own case inadvertently exhibits.
Rebuttal: This is Not a Small Debate
This falls into the challenge that was initiated from the opposition which was to point out how "socio-economic rights relating to education, association, public facilities, employment, political emancipation" are being impaired within the status quo.
In the status quo, we see that gay persons do face discrimination: In 29 states of the US, citizens can and do get legally fired for being gay or lesbian [[http://socialistworker.org/2009/08/11/lgbt-equality-on-the-job]] and in other countries such as Turkey [[http://www.independent.co.uk/news/world/europe/gay-referee-gets-red-card-in-turkey-1718056.html]] which shows that LGBT citizens' employment is limited.
Schools do not protect gay students from harassment, abuse or threats from other students [[http://www.newsday.com/nyclu-says-school-didn-t-protect-gay-teen-1.1379784]].
Gay bars and institutions are subject to unruly and unregulated raids which threatens LGBTQ persons' right to congregate peacefully with like minds without apprehension
Gay Parades are banned in countries and cities such as Moscow which removes any sort of right of protest [[http://www.advocate.com/news_detail_ektid107690.asp]]. LGBTQ people face much social discrimination.
The opposition attacked our opening analogies: of course, all analogies must have some dis-analogous part, and surely the scope of the examples of Jim Crow and apartheid do not make a one-for-one correspondence to the denial of same-sex marriage. The importance of them is to show that when a group, be it a minority or a majority, is deliberately denied symbolic equality, they are made into an ideological minority, they feel the pain of undeserved mistreatment, and they do not feel that is it a "small" debate.
Our claims were:
(1) The specific issue of the right to marry is a small and tangential one in comparison to Apartheid or the Jim Crow laws.
(2) Bringing about formal equality by using top-down legislation is not the way to encourage substantive equality. Substantive equality relates to, but is not limited to, all those things proposition has just mentioned - equal treatment from the police, from fellow citizens, and from employers.
(3) That it is incumbent upon proposition to show that allowing access to same-sex marriage would have substantial meaningful benefits for homosexuals.
Further, proposition persists in failing to pry apart concerns by gay persons that fall outside the debate, but which are legitimate. For example, raiding gay bars or limiting gay persons' employment rights, etc., are not relevant in this debate, so a mass of evidence about those discriminatory practises are impotent in this context.
We challenged Team USA to either show us a) why all of these gains that gay persons seek must be, and can only be, won as an irreducible * PACKAGE*, rather than won on an issue-by-issue basis; and/or b) why legalising same-sex marriage is a NECESSARY CONDITION for these other ills to disappear. Not only has this challenge been responded to with silence, but we in opposition have given positive evidence and argument to the contrary (see, again, for example, our entry on the backlash against gay persons which evidences the non-obvious link between same-sex marriage and more substantive equality concerns that gay persons rightly have - like, indeed, living in safe environments such as being able to frequent a pub without risk of becoming a hate crime victim)
So, the connection between same-sex marriage legalistion and these alleged wider social benefits for gay persons remains unproven.
Rebuttal: More than gay rights
Indeed, Team USA's confusion about 'sex' and 'gender' issues is starkly revealed when they state in their rebuttal:
"With the legalization of same sex marriage, gender is no longer an element in the marital equation, therefore sparing intersexed and transgendered individuals the trouble of choosing and declaring a gender to get married."
- Gender has NEVER been 'an element in the marital equation'. 'Gender' is a social construction, while 'sex' is a biological category. Marriage debates are about which 'sex' groups can get married - males and females only? Or also same-sex couples? 'Gender' issues would speak to feminitity, masculinity and other behavioural identity types that overlay the physical body of a person. The crux of the social stigma, and legal battles, of intersexed and transgendered persons stem from wider societal prejudices around i) whether or not only two sex categories are ethically acceptable ('natural') and ii) what genders can be accepted, socially and legally, etc.
- but NONE OF THESE massive, and legitimate quandaries facing the transgenedered and intersexed communities are dependent on whether same-sex marriage is legal. [ For example, if same-sex marriage is legal, presumably, if proposition is right, "...the trouble of choosing and declaring a gender to get married" would be gone. WHY, if so, in the 7 test cases - i.e. the countries where same-sex marriage IS legal - do we NOT have marriage regimes for intersexed and intergendered persons who refuse to adopt the tired gender categories specified by the law? Clearly, these constitute real world counter-examples to proposition's argument. ]
This proposition argument therefore remains a jarring red herring and opposition remains surprised that proposition is persisting in trying to keep it a live issue. Surely not?
Rebuttal: What's in a Word... Everything!!
When you hear two people are married, there is certain socially conditioned imagery which comes to mind. Their level of commitment to one another, their love and respect, companionship, even married couple jokes. When you hear the that two people are each others legal partners, now what comes to mind? Oh they're gay. Nothing else. You don't picture them with children or a family. You don't think of their commitment to one another. You simply haven't grown up reading about or seeing 'civil partners' and lack a knowledgeable example to relate to. The images most ready-at-hand are stereotypical ones. The LGBT community is then given the burden of constructing a reference frame for this term used exclusively for them, and since most of their positive constructions will be ignored by those opposed to them, the reference frame will be constructed from a majority of negative stereotypes.
Furthermore, if the opposition truly believes that marriage is 'just a word' then what is the harm in calling it marriage? If the reason we deny same-sex couples the symbolic importance of a marriage is because of majority homophobic sentiment, we are condoning the existence of those sentiments. While governments cannot make people not homophobic any more than they can make them not gay (as they attempt to do in Iran with forced sex-change operations), the resistance to allowing same-sex couples to marry is significant because the resistance is based upon non-existent, biased harms, that marriage will be defiled, that gays will hurt children, etc.
Let's elaborate on this using an imaginative paradigm. If we lived in an majority anti-Semitic country that allowed Jewish couples the same formal rights in civil unions as in marriage, but did not allow Jewish unions to be called "marriages" on the basis that, in the majority view, their unions were somehow fundamentally different, it is not hard to see how this would be an anti-Semitic policy. If the government kowtows to the overweening bias of its citizens, it ultimately ends up supporting that bias, formalizing it, and giving it more power in society. The anti-Semites can then point to the legal statues and say, "See? Even here we see a difference between us and them, in the impartiality of the law."
The difference lies in the fact that no one tries to go from a marriage to the a legally identical civil union, but selected individuals can be forcibly directed away from a marriage. The opposition mentioned that South Africa allows for both Civil Unions and Marriage, we'd like to ask them how many decide to go for this 'identical' civil union over the marriage.
We agree, firmly, that there are cultural and religious differences between civil unions and marriages. We disagree that these differences relate to 'levels of commitment' or 'strength of the family'. In fact, the principle difference in terms of association relates to religious and cultural values, whether or not people have been 'joined' in 'the eyes of God(s)'.
This symbolic value is tremendous to a great number people, and it is a symbolic value that is attached to the entire institution of marriage, not just to specific cases of marriage.
This opposition to same-sex marriage does not even have to be predicated on homophobia, but is often predicated simply on a resistance to altering religious and cultural conventions. The government is not condoning homophobia by respecting this cultural and religious preference.
Furthermore, proposition's case is based on a popular liberal assumption that there is widespread DEMAND for same-sex marriage *within* the gay community. If this were true, why have the uptake of marriages in countries like Canada, Spain and South Africa been so poor? In places like Canada, moreover, there was very little support within the gay community itself [[http://www.lifesitenews.com/ldn/2007/dec/07121708.html]] for same-sex marriage to be legalised in the first instance.
What these trends speak to, is not just the reality that no harm is PERCEIVED/FELT by most gay persons themselves, in relation to exclusion from the regime of marriage ... but it all also inadvertently exposes the fact that the fight to legalise same-sex marriage stems often from a parternalistic liberal assumption, as is committed to by Team USA in the adjacent rebuttal, that gay persons must be feeling aggrieved on the matter, and surely have a deep desire for inclusion. On the contrary, many gay persons do not recognise the marriage symbolism that proposition is waxing lyrical about, let alone going on mass protests fighting for inclusion.
So, given that the demand for same-sex marriage within the gay community itself is clearly elusive, and not widespread at all....the proposition's attempt to project a desire for inclusion onto the community, is based on crystall-ball gazing.
We conclude the following, here:
1. The symbolism attaching to marriage is not proven by proposition to be one that is universally accepted; 2. Harm cannot be imputed to the gay community when they themselves do not express widespread desire for inclusion; 3) Team USA's fight to include gay persons in the marriage regime, despite the lack of demonstrable demand, exposes the real driver of this proposition - straight liberal paternalism
Rebuttal: Democracy or Majoritarianism
Opposition argumentation seems to suggest that the government may only override the will of the majority in the most extreme circumstances (e.g. the slaughter of twins). A government may subvert the will of the majority when, if it did not act, demonstrable harms would result. We can see this happen throughout the history of human rights, be it anti-discrimination laws, affirmative action laws, hate crime laws, or any other.
The insinuation that government legislation for same-sex marriage would be an unfair imposition on the majority of dissenters only stands once government starts forcing its citizens to marry someone of the same sex. To quote opposition: "Liberalism is in essence the preference for self determination at the most personal level." This would seemingly make it clear than self determination at an individual level is the highest priority. Same sex marriage allows for self-determination within the LGBT community, without hindering the self-determination of those who oppose same sex marriage. They remain perfectly free to have a heterosexual marriage and not associate with anyone who hasn't got one.
The debate at hand is just such a marginal case; a tiny minority demand formal equality in relation to a fairly tangential issue, and a large majority reject that on the grounds of cultural and religious preference. This is precisely the type of case in which the majority's preference stands.
We can even see this in a number of less tangential cases: redistributive practices are restricted by majority preferences for low taxes despite the substantial harm that non-redistributive capitalism can do to poorer citizens. Private medical aid systems are put in place despite minority groups who cannot afford them. Similarly, private insurance is encouraged in places where the majority can afford it but the minority is left to suffer. Abortion is outlawed in many places because the majority of people feel that the issue is not a transparent case of 'do what you want' - they are asked to govern for themselves and they do. Similarly many states outlaw stem cell research.
Is the proposition willing to attack these examples? Are they willing to say that the majority's well thought out and clearly expressed preference for a certain way of being should be trumped because it does some harm to a minority group? The 'harms', in this instance, at any rate, have not been proven to be of a magnitude that would justify disregard of majority preferences.
Finally, proposition would do well to recall that opposition is totally ok with legalising same-sex marriage where preferences of the society DO point in that direction - hence our opposition clash that we should all endorse, instead, moral and legal pluralism on the matter, within the international community, allowing each country's unique law-making processes to decide the matter -- as opposed to liberal fascism which can harm gay persons' SUBSTANTIVE long term interests...
Rebuttal: The road to true equality, legal or social??
We see that historically, legal rights precede social equality for unequal groups. If the government does not view LGBTQ persons as true equals, the pressure for the citizenry to is ultimately diminished. The women's rights and civil rights movements of the past counted as successes those laws which came even while they were still being challenged by the majority, such as laws ensuring suffrage or equal access to institutions. With the passage of time, we see that these were true successes as they became societal norms. The same stands true in this debate.
Although culture can create and change norms, creating a norm can affect culture. The burden of explaining your relationship was trivialized by opposition. But if every time you explain it, if the way you are forced to socially explain yourself revolves around your difference, your gayness, you feel forced to identify yourself as gay before anything else. This makes it more difficult to change the social paradigm that this difference is not bad.
Proposition agrees that changing social mindsets is of vital importance, but legal change is not just a stimulus for this social change, its a necessary precursor. Societal mindsets are fluid, a lot more so than laws. Additionally, mindsets vary, laws are universal. The problem this brings is that when faced with discrimination by the populous you have ways to deal with it, be it by ignoring it, tolerating it, or ideally fighting it. There are support groups, and their are courtrooms. Discrimination on grounds of sexuality is illegal in most liberal democracies [[http://en.wikipedia.org/wiki/LGBT_rights_by_country_or_territory]] as are hate crimes, therefore allowing for legal recourse in case LGBTQ people are wronged. But when the law itself is the one wronging this people, they have no recourse. They cannot fight it, they cannot avoid it or ignore it, and it they try to take their right, they are criminals. This legal barrier is far greater than the social barriers, and needs to be lifted before the social barriers can be fought.
We have two responses:
1) The examples used by proposition are disanalagous. While proposition believes that this isn't a problem ("all analogies are dis-analagous"), it is a significant problem when the analogies are county-miles apart.
Consider what is at stake in this debate: the positive right to access a predominantly religious, socially symbolic, institution.
Consider what was at stake when the state previously excluded women and blacks from certain processes (e.g. voting) or benefits (e.g. any/equittable social welfare): the negative right to not be excluded from socio-economic opportunities. The negative right to not be excluded from decision making processes.
First, we are talking about different levels of magnitude (in respect to the consequences of these rights). The right to deterimine who governs you, and thereby gain power to make a range of policy decisions that will affect the fundamental design and routine of society, etc. ... vs the right to call your same-sex partner 'husband' or 'wife'.
Second, we are talking about religious/cultural rights (marriage) versus secular rights (public institutional rights).
Third, we are talking about different TYPES of rights. It is not the state's role to 'pathfind' new positive rights for people to access (the right to X), but rather the state's role to ensure that, broadly speaking, people do not have their negative rights (the right to be free from X) unfairly imposed upon.
2) Pro-active state intervention is often *not* successful. Proposition cannot claim to have found causality by looking at cases in which the state intervened and 50 years later the world is a better place.
First, there is no meaningful counterfactual at play - how do we know that universal sufferage wasn't just around the corner anyway? Ending Apartheid did not require a pro-active state, just a state-segregated economy that could no longer function for a citizenry that was mostly excluded from it. Indeed, Apartheid came to a crashing end because of EXTRA-LEGAL measures, such as sanctions, civil disobedience, the contingent fact of certain leadership changes (e.g. De Klerk replacing P.W.Botha as last pre-democracy State President) etc. There were NO LEGAL CHANGES that were a 'precursor' to the enjoyment of substantive equality by black South Africans.
Even in proposition's own country, for example, there is proof that the law cannot fufill this function of social change effectively. Long after the passage of civil rights legislation that allowed for formal equality for African-Americans, African-Americans continue to experience large-scale social discrimination, in both seemingly-benign ways (e.g. racial profiling) and more violent, explicit ways (e.g. differential access to social welfare, as was evidenced in the wake of Katrina; higher likelihood of capital punishment; etc.)
By analogy, Team USA is indulging in profound idealism by imagining that legalising same-sex marriage is the sine qua non for 'the road to true equality' for gay persons. True equality stems from the successful engagement of false or unwarranted beliefs and attitudes towards gay persons by using instruments at the coal face of such discrimination e.g. promoting in-school diversity programmes and the like.
Legislating homo-tolerance through the oblique policy of legalising same-sex marriage has not worked in one country around the world.
The moral is clear: the law is a very poor instrument of social change.
The rest of proposition's argument relates to their misguided analysis of homosexual people's identities. Effectively they believe that because homosexuals constantly have to explain their relationship status to other people they are constantly confronted with their 'gayness', and this becomes the core of their identity.
We still believe that it is perfectly easy to express your relationship in a casual and uncomplicated way; if there is any issue that will cause social tension, it is not what you call the relationship, but the fact that you and your partner are of the same sex. If we DID legalise same-sex marriage, for example, why would there be less social tension at the table when Tom announces, "Meet my husband, Jim, everyone!"
Team USA is romaticising the impact that the label 'husband' will have in reducing or eliminating social challenges that same-sex partners face.
We think it will make zero difference - the driver of that tension is prejudice against same-sex love, not against same-sex couples being unmarried!!!!!
Let the battle be won first in the minds of people - let them come to accept that homosexuals are just like other people. Forcing homosexuals into the lives of those who resist same-sex marriage, by disregarding inculcated social, cultural and religious preferences, is a sure-fire way to force the fight for substantive equality one step back.
Rebuttal: Stereotypes- Propagation and impact.
We accept that the start of these stereotypes may be religious, but we believe even the most religious people need some evidence, however skewed to spread such hate. We believe by denying Same sex marriage this stereotype of the homosexual who is incapable of monogamy is only further propagated, since it puts an official stamp of approval from the government that there is something lacking in same sex relationships which does not qualify them for marriage.
Possibly more even damaging is the fact that stereotype don’t just affect others, they affect you too. While growing up in a social climate where you are getting this strong stereotypes about what you are supposed to be, and then you see the government making legislation denying you rights, and confirming this ideas, you start believing them to inevitable traits you must accept.
This is where the additional price added to homosexuality by the government comes in. Opposition is right that there are some individuals who do not face moral quandaries over their sexuality, but unfortunately these individuals are few and far between. We see significantly higher depression and suicide rates amongst homosexuals [[http://www.gayfamilysupport.com/gay-statistics.html]] No small cause of this is the dichotomy of choice homosexuals are faced with. Yes true, you can technically still married, but I don’t think there are too many cases of a openly gay man who can go up to a woman, tell her he’s gay and then ask her hand in marriage. That is a ridiculous justification by the opposition.
So when we take into account the damaging nature of these stereotypes that denying same sex marriage spread, and the probable consequences instead of “Technically possible” that the opposition gives us, we see that legalizing same sex marriage makes being homosexual a whole lot less depressing.
What the proposition has given us is at best badly articulated pop-psychology. The public see that gay people can't be married and thus equate the 'problems' of non-married people to homosexuality. We see no evidence whatsoever for this psychological link other than a simple correlation - maybe; why is it that South Africans, who live with and know about married homosexuals, still have strong feelings of 'dislike' towards homosexuals?
The proposition then attempted to show that the fact that homosexuals*youths* are more likely to commit suicide relates to the moral quandries they face with regard to their sexual identity. Funnily enough, the statistics they cite all related to *youths* (age 12 - 21), not the age group that is likely to be in any way affected by the legalizing of same-sex marriage. At the same time, we believe that the quandaries faced by homosexuals are as a result of the way in which fellow citizens treat them. It is no surprise that young homosexuals commit suicide more frequently than young heterosexuals if we consider the fact that, as stated in the proposition's own evidence, homosexuals are treated very badly at schools [[http://www.gayfamilysupport.com/gay-statistics.html]].
WHY WOULD SAME-SEX MARRIAGE ELIMINATE these statistical realities at any rate? Proposition's linkage of the same-sex marriage debate with other issues faced by the gay community remains limp.
This debate, first and foremost, has been a “should” debate, not a “can” debate. We have recognized that even as we hold a principle to be universal, its application can be anything but. However, taking a principled stance that something ought to be the case is the first step toward accepting that maybe, when the stars align, when governments come to their senses, when younger segments of the population finally get voting rights, then just maybe things can and will be the case. But “should” as a consideration of a principle always needs to precede “can,” since our ability to do something is not useful to consider until we address if it’s a good idea at all. We have done significant work to establish why same-sex marriage should be legal. When the world finally agrees with us on that issue, then we’ll gladly come back and argue whether or not we can make it legal.
Secondly, this debate has been about the identification of the groups impacted by the government’s insistence on keeping same-sex marriage illegal, and the groups who would be affected if that principle were to change. Not only are same-sex couples excluded in societies that choose to keep them outside of the institution of marriage by relegating them to domestic partnerships or civil unions, but the individuals themselves, absent their couple-hood, are impacted. A society that is not inclusive of all of the minority groups keeps them at a status of “less than” the groups which it has let take full advantage of their social and governmental practices. This translates to the reluctance of homosexual individuals to be freely open about who they are, since they live in a society that has implied there ought to be shame in such an abnormal lifestyle. The society tells them that if they were normal, then they would be getting married to someone of the opposite sex, not the unnatural same-sex partner with whom they might wish to make a life. This message from the top down (as opposition so likes to harp on) sends a message, reinforced by the extreme viewpoints who find solace in the fact that the people they look down upon aren’t fully-equal citizens, and ultimately devalues the individuals within society who already have existential crises when addressing the very large question of “what is my sexual orientation?”
Next, the impact upon those individuals who made it to the level of being secure in their sexual orientation, found someone else who is also secure in it, and are truly in love and want to make a life with each other find that they cannot do so to the extent that the “normal” heterosexual partners can. We have already established the significant amount of government provisions that are denied to homosexual domestic partners or those who are in civil unions. The only example provided by the opposition of rights being equivalent when comparing civil unions and marriage is in South Africa, where couples have the free choice to select either option, even if they are homosexual. Sure, if both groups have equal access to both institutions, have both of them. But when one group gets access to both (civil unions and marriage), but another group only gets access to one (just the civil union, sorry), we have seen no evidence of legitimate justification for governments essentially segregating access to rights and full-incorporation of minority citizens.
Lastly, the impact upon those individuals who oppose same-sex marriage, or homosexuality as a whole. Oh wait, there is no tangible effect legalizing same sex marriage has on them.
The opposition seems to have forgotten how they wish to frame their arguments. In one breath, they tell us they have a defense of the status quo in their line of argumentation. In another, they attempt to escape each status quo harm identified by the proposition by suggesting they can establish civil unions to be the mechanism by which homosexuals receive the full rights of government. Tricky, tricky. It would be nice to operate from a world in which we could just make things be the case as well, rather than find a more effective, yet possibly more difficult area of analysis from which to challenge the truth of arguments. But side opposition decided to evade the most damning arguments we have against the status quo by suggesting we should establish civil unions which have the same rights as marriage, which is nearly a concession of the entire side proposition line. The only difference is to not call it “marriage” in itself, which they cannot fundamentally find a reason not to do, since the only problem with calling it “marriage” they can identify is that people who hold religious mindsets against homosexuality will get mad. As was stated, most extensively in the propositions refutation to the opposition’s “pluralism is super awesome and we can’t make laws that violate it, except when killing babies is at stake” argument, we have identified many instances when governments expand access to rights and treat all citizens as equals, even, and perhaps especially, when groups within a society wouldn’t like it very much. The opposition provides nothing but logical inconsistency and their case is rife with trivializations, both of the plight of homosexual individuals and of the right to marry. Their claims that proposition is deceptively making a human rights issue out of same sex marriage, and that homosexual individuals have no legitimate expectation to be allowed to marry is clearly misinformed. Equal rights in marriage is a acknowledged human right a per the U.N. deceleration, and as such homosexual individuals have a legitimate expectation and right in any signatory country towards this.
The only tangible harm that has been identified by the opposition is backlash, and yet the only evidence they can provide of it states that “homophobic incidents” have not decreased (which never states they have increased), and that lobbying against homosexuals has increased. When these two potential results of same-sex marriage becoming legal are weighed against the harms that exist in the status quo, they do not translate into great importance. Backlash, while yes, important and worrisome, is less significant than how many rights are denied to homosexuals, how much of a social barrier to coming out homosexuals discern, and how much the government’s status quo position actually reinforces the hate groups which actively work against homosexuals.
We have taken a stance, as side proposition, towards equality, towards inclusion, and towards social harmony by the inclusion of minority groups. Fundamentally, even though we are different as people, we are still equal in regards to the relationships we have with our government. This stance might not be put into action by all world governments immediately, but we hold firmly to the idea that if we advocate for equality, we may actually see it materialize, even in unlikely scenarios. It is for these reasons that we beg to propose.
Outline of Opposition Clash: A defence of the status quo
We will argue that such plurality reflects the legitimacy of each country's unique socio-legal and political processes that have resulted in a particular country's policy in relation to same-sex marriage.
In other words, we do not deem the imposition of the analyses of proposition, on all governments of the world, acceptable.
Two key positive arguments which we will develop in support of our contention are as follows:
1. Since the ethical status of homosexuality remains undecided it is acceptable to have different moral and, consequently, legal, attitudes towards same-sex marriage. It is incumbent upon the proposition to show us that the ethical status of homosexuality is such that we must derive the 'right' to same-sex marriage.
2. Even if we were to accept, for sake of argument, that it is a moral truism that homosexuality is acceptable, and same-sex marriage derivatively desirable, the end-goal of persuading those who do not believe these claims, and thereby improving the lot of gay persons, can be massively harmed by a blanket moral demand by the United Nations, or team USA, that same-sex marriage be legalised immediately.
[ Of course, Team USA was unclear whether their case is purely normative - i.e. a wish that some universe one day be created in which same-sex marriage is legalised everywhere - or whether it is a more gutsy proposition that in *our* reality it is desirable, presently, for all (?) countries to legalise same-sex marriage. Their outline suggests a confusing attempt to cover all bases. Absent such clarity, opposition will reasonably intepret proposition to regard it desirable that tomorrow most countries grant same-sex couples the right to marry, and the rest take very meaningful steps towards doing so.]
It follows from the outline of our clash that we are NOT going to argue that homosexuality is immoral. We also do not intend to argue that same-sex marriage is inherently undesirable.
Our case is simply, in a sense, but critically so, a defence of legal and moral pluralism, and the importance of a gradual realisation of liberalism. We trust that this subtletly will not be mistranslated by Team USA.
Forcing change in liberal democracies is itself illiberal
Liberalism is in essence the preference for self determination at the most personal level. But a state (and the body of laws encapsulated by that state) is merely an abstraction of personal preferences and wills, and hence, in a classical Rousseauian sense (the same beliefs on which US federalism is predicated), a liberal state's norms, practises, and legislation, must be defined from the bottom up rather than the top down. It is only through determining the rules that bind one at the level of the state that one can truly practise liberal self determination. If we accept proposition's proposal and force same-sex marriage upon (effectively) all societies, we are in fact incurring a great cost to the very liberal project we are intending to promote and protect, for an as yet unclear benefit. Remember, this is not, as proposition believes, the profound disenfranchising of homosexuals by removing their rights to access economic opportunities or public services and utilities.
The reality is that, at present, the majority of people in the 'contested' countries of this debate do in fact feel that same-sex marriage should not be allowed (that's why these countries are the interesting cases). Gallup polls as recent as 2009 show this to be true, and show that in those states which have forced through same-sex marriage legislation against the will of their population have not seen a rapid decrease in resistance to same-sex marriage [[http://www.gallup.com/poll/118378/majority-americans-contine-oppose-gay-marriage.aspx]]. We advocate precisely the attitude of California's Supreme Court who refused to overturn a public referendum (Prop 8) on homosexual marriages that came down in the negative; it is not the place of legislators or judges to impose, illiberally, legislation on the collective.
For example, like what is taught in our schools: http://www.gallup.com/poll/21814/Evolution-Creationism-Intelligent-Design.aspx
Moral and legal pluralism in relation to same-sex marriage is acceptable
Two important questions stem from all of this. Firstly, can there be reasonable moral disagreement on the status of homosexuality? Secondly, what are the implications of question one for the debate on same-sex marriage?
We answer the first question in the affirmative. It follows from this that a legal plurality on same-sex marriage is acceptable also.
ON REASONABLE MORAL AND LEGAL DISAGREEMENT:
STEP 1] Many ethical views on homosexuality exist. On the conservative end of the spectrum, often informed by religious textual authority, is the view that homosexuality offends the prescriptions of God - or a God-alternative - and since God is the sole source of moral authority, homosexuality is wrong.
On the liberal end of the spectrum, of course, is the kind of view that informs Team USA's intuitions no doubt - that rationality, not God, is the source of morality. Since no rational justification can be proferred for distinguishing between gay persons and heterosexual persons in relation to the distribution of legal regimes like marriage, it is irrational, and therefore immoral, to deny gay persons' right to marry.
Between these end-points, a range of views exist between e.g. homosexuality is ok but marriage is an institution with a unique religious aetiology which should not extend to homosexuals.
These three positions - there are many others - constitute proof of opposition's contention that there is a plurality of moral views on homosexuality.
More importantly, it is ok that these diverse views exists. We cannot adjudicate between them. The liberal framework informing Team USA's view is not based in a universal moral truth that every person must accept in order to resist a charge of immorality. We challenge Team USA to justify why their moral framework should be granted the lofty status of 'moral objectivity'.
It is precisely because moral views reflect the socio-cultural norms within which they were developed that moral objectivity is elusive. Some like banana on pizza (or, indeed, inside them); others don't. Either way, we cannot adjudicate between these matters of taste. They are just that - differences in taste.
Similarly, moral intuitions are just reflections of moral taste between persons, and governments, around the world. While I may regard your moral taste as 'bad taste', I cannot give mine priority over yours in determining and ranking moral viewpoints on particular issues like homosexuality. Thefore, there can be, and indeed there is, reasonable disagreement on whether or not homosexuality is morally acceptable.
STEP 2] Given, therefore, that there is reasonable disagreement about the ethical status of homosexuality, it follows that legal pluralism on the issue is neither surprising nor unacceptable. After all, there is an important relationship between law and morality: the legitimacy of a legal system partly derives from reflecting the social mores of the citizens who are subject to that legal system. If there is a gap between the moral norms of a legal system, and the moral convictions of that society, then the legal system's credibility is at stake.
This is not to say that law making process is a crude matter of doing a headcount of the views of citizens. Not so. Of course if the views of a citizenship is beyond the pale, then a progressive legal system could challenge it. If, for example, 90% of a citizenry thought that twins should be killed, it would be hard to argue that a legal system should unthinkingly reflect this wish.
However, homosexuality is not a matter in respect of which ethical disagreements are so easily solved. The range of moral attitudes are not 'beyond the pale' but for the liberal one Team USA is sustaining. It is ok for a view that regards homosexuality as immoral to exist. If this is conceded - as it surely must be - then it is ok for a legal system in a country, through whatever the law-making processes are that exist in that country - to reflect this view in its policy (or not) on same-sex marriage.
It follows that moral and legal pluralism in relation to same-sex marriage is acceptable.
Furthermore, we find is ironic that the opposition would argue for plurality, while at the same time taking the stance that a majorities view should be allowed to ban a minorities rights. By allowing same sex marriage (but not forcing it upon heterosexual Christians like opposition seems to believe), the government allows for the plurality of action and accommodate both parties. By restricting this right, we are not being pluralistic, we are being majoritarian.
The opposition has yet to define one demonstrable harm that comes from the legality of same-sex marriage. Personal comfort levels and religious norms are violated constantly by legal mandate, but states stop short of encroaching on anyone's right to believe that these things are wrong, disgusting or sinful. The opposition misses the distinction between the public results of permitting same-sex marriage and the private impacts of the action. There are a multitude of opinions regarding relationships, but we leave private individuals to determine for themselves how to conduct their lives without government interference.
Recently, the High Court of Delhi in India overturned a century-and-a-half old anti-sodomy law, which not only shows governments can get out of the bedroom, but that progressive societies can change their minds about what was once ethically unacceptable. [[http://lobis.nic.in/dhc/APS/judgement/02-07-2009/APS02072009CW74552001.pdf]] Similarly, Lawrence v. Texas in 2003 overturned that state's anti-sodomy laws. [[http://www.apa.org/psyclaw/lawrence-v-texas.pdf]] In 2005, Fiji overturned its anti-sodomy laws in response to a conviction of two gay men. [[http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/366.html]] Also in 2005, on the grounds of the existing laws being discriminatory, a judge overturned the anti-sodomy laws of Hong Kong. [[http://www.lifesitenews.com/ldn/2005/aug/05082406.html]] The Knesset of Israel, a state that literally aligns itself with a religious ideology, is considering making same-sex marriage legal, and even including within the legislation a clause of gender neutrality. [[http://www.ontopmag.com/article.aspx?id=3320&MediaType=1&Category=24]] However, most Israelis still consider homosexuality an aberration. [[http://www.angus-reid.com/polls/view/33967/homosexuality_an_aberration_for_many_israelis]] We applaud the lawmaking body of a country that takes a stance for equal rights of all citizens, even if some, perhaps most of the citizens in question are displeased with the expansion of rights for a minority. The global trend has been an expansion of rights, and we see no clear reason not to take a firm stance and promote the rights expand further.
It creates a social backlash that damages substantive equality for homosexuals
We contend that substantive equality for homosexuality is more important than formal equality. Substantive equality is at risk here & so gives us yet another basis for siding with opposition.
Here is why.
The proposition's case is an attempt to grant homosexuals what might be called 'formal' equality' - nominally equal rights or sameness of treatment on the statute books. On team opposition we are far more interested in securing for homosexuals 'substantive' equality - broadly equal treatment with broadly equal consequences. While the two are not necessarily mutually exclusive, the former does not necessarily bring about the latter, nor is the latter predicated on the former.
As we have already suggested, it is incumbent upon proposition to show that formal equality brings about substantive equality; we believe that too progressive formal equality can actually damage our attempt to gain substantive equality for homosexuals.
A good case study is, in fact, South Africa. South Africa was the first country in the world to constitutionally enshrine gay person's right to not be discriminated against on grounds of sexual orientation [[http://www.info.gov.za/documents/constitution/1996/96cons2.htm#9]] . Subsequently, and to little surprise, the constitutional court declared the existing Marriage Act invalid [[http://en.wikipedia.org/wiki/Same-sex_marriage_in_South_Africa#2005_Constitutional_Court_decision]] and thereafter the South African parliament enacted legislation that enables gay persons to be legally married [[http://www.home-affairs.gov.za/media_releases.asp?id=370]].
Yet, despite this formal equality enjoyed by gay South Africans, there has been a social backlash. Indeed, it is fair to describe South Africa as deeply homophobic, with a huge number of cases of so-called 'corrective rape' for example [cases in which lesbians have been raped in an attempt to 'turn them straight'; some are even killed].
Evidence of this phenomen being widespread has been documented and publicly reported by very credible bodies, such as the South African Human Rights Commission, as well as LGBT pressure groups, like OUT [[http://www.news24.com/Content/SouthAfrica/News/1059/0dc26685e8f3408d9c72ffa6d8884992/12-03-2008-09-13/Corrective_rape_at_schools]] [[http://www.guardian.co.uk/world/2009/mar/12/eudy-simelane-corrective-rape-south-africa]] According to Triangle - one of the prominent gay organisations in South Africa - no less than 86% of lesbian women in townships around Cape Town live in fear of sexual assault because of their orientation. Same-sex marriage has fuelled, rather than stemmed, these homophobic patterns.
The moral of this case study is clear: despite liberal constitutionalists - like Team USA - around the world deceptively using South Africa as an example of same-sex marriage legislation being enacted, South Africa showcases both 1) the impotency of using the law as a blunt instrument for bringing about attitudinal changes ; 2) more importantly, shows the social backlash that can happen if a bottom-up strategy for ethical dialogue is substituted for top-down legal prescription.
Countries that are even more homophobic - like Botswana or Namibia, say, both of whom have constitutional systems and are members of the UN, and so must fall within the range of countries Team USA have in mind - are likely to see worse backlashes against gay persons.
Formal equality is thus a danger to gay persons' enjoyment of substantive equality, the latter being more important. Gradualism is much more sensible - bringing about incremental changes in the lot of gay persons through securing more uncontentions rights for now, such as gay persons' right to live in a safe environment. Same-sex marriage, as our case study shows, is neither necessary nor sufficient to make environments safer for gay persons; indeed, same-sex marriage can militate against that aim in many contexts, liberal societies included.
The South African government was clearly aware that there was "overwhelming opposition to this bill from people throughout South Africa" [[http://news.bbc.co.uk/2/hi/africa/6147010.stm]] when they legalized same-sex marriage. It affords same-sex couple legal stature and recognition in a very homophobic atmosphere. It is hard to see how "gradualism" could have prevented these acts of violence. Indeed, more immediate legal action continues to be called for from the gay community in South Africa. [[http://www.pambazuka.org/en/category/lgbti/58066]]
Rebuttal 1: In defence of public opinion
The opinion poll showing public views on the evolution/creationism stand-off does not speak to our substantive argument about the illiberal nature of forcing countries to adopt same-sex marriage in the face of public mores that runs deeply to the contrary.
The principle that opposition defends is that the moral legitimacy of a legal system depends in part on taking seriously the moral preferences of its citizenry, hence our clash of moral and legal pluralism.
Besides, the debate about evolution vs. creationism is disanalogous. Evidence in favour of evolution is an empirical matter, and the creationism claims, though partly principled, has to answer the empiricism of evoultion.
The same-sex marriage debate is fundamentally a normative ethical one. It is not an 'empirical fact' that same-sex marriage is acceptable. Such an assumption, which seems to be the motivator for Team USA's 'rebuttal by ridicule', is circular.
Our argument that law making should take seriously the moral preferences of those subjected to its laws, and social policies, stand. Moral and legal pluralism in relation to same-sex marriage, follows.
Rebuttal 2: Moral and legal pluralism's rightful place
1) States can ignore views that have a religious aetiology when making laws and deciding social policies;
2) Specifically in relation to homosexuality, governments need not be morally agnostic as to whether or not homosexuality - and, hence, same-sex marriage - is acceptable;
3) Since marriage, in its civil guise, bears no necessary or important relation to religious marriage ceremonies, civil marriage should not be exclusive - at most it is religious praxis that need protection, which laws already provide for.
After lengthy exegeses by proposition on red herrings such as the fate of intersexed persons, Team South Africa is excited by the first, abeit belated, real argument that speaks directly to the institution of marriage per se (claim 3 above) rather than tangential, wider social issues.
Nevertheless, Team USA's analyses is still not cogent - a case of too little, too late.
We will deal with the three claims in turn. We deal with the first one below, and list the other two sets of responses separately, for ease of reading.
1. Opposition is in total agreement with proposition that religious ethical views should not be given a *special* place in law making. We never claimed that to be the case, nor would we do so.
We rehearsed the religious argument against same-sex marriage, not to own it, but to argue that its existence, and ownership by many citizens in many countries, is an ACCEPTABLE social reality.
And, to the extent that views which regard homosexuality and samse-sex marriage as wrong exist, it is OK for laws and social policies, IN THOSE SOCIETIES, to reflect such religious or non-relgious but conservative, conviction, if such conviction runs deeply. Particularly given that the harms of exclusion from marriage have not been established by Team USA, policies reflecting this kind of religious-inspired attitude towards homosexuality cannot be seen as a moral error on the part of lawmakers.
In a sense - and we think that this was done in good faith - proposition wrongly assumes that opposition is endorsing the content of religious ethics. We are not. We are endorsing the right of religious ethical views, should they dominate the moral dialectic in a country, to find expression in public policy.
Conversely, the view implicit in Team USA's position is, in turn, not value-neutral, not unlike other ethical perspectives. The assumption that liberalism is devoid of moral content is popular but not accurate. A state that priorities individual freedoms over the views of the majority (even where those views do not lead to demonstrable harms as has been the case in this instalment of the same-sex marriage debate); a state that maximises space for as many conceptions of the 'good life' to be lived as possible; a state that refuses to express a view on different identities and lifestyles .... such a state is not morally neutral, since its principles and ethos amount, in themselves, to ONE conception of 'the good life' - a liberal, individualist, secular model of society - that competes with other political and moral visions of an ideal society.
The burden Team USA must discharge - alas it is too late - is not ONLY to dismiss religious ethics' exclusive place in policy making (with which we concur), but to give positive argument for why the liberal individualism that drives their dismisall of ANY majoritarian input on the same-sex marriage debate, is ethically correct.
The failure to discharge such a burden entitles opposition to conclude that the dismissal of religious ethics' entitlement - or, indeed the entitlement of any non-liberal ethical doctrine - to find expression in the same-sex marriage debate has been hastily and wrongly dismissed by Team USA.
Opposition's contention that the existence of moral and legal pluralism within the international community on same-sex marriage is acceptable therefore remains unharmed by Team USA's concerns about religion.
Rebuttal 3: Homosexuality and moral agnosticism
Opposition is not arguing, as we had said before but which must have fallen on closed eyes, that homosexuality is immoral. We are agnostic on the issue because there is no moral objectivity that can settle the issue.
Proposition has tried to make their case by framing it in terms of emotive human rights language. That is deceptive - clever, but worthy of the label deception. Of course there is a difference between what should be state-sanctioned, and what should be allowed to exist in private. Yes, in private, it is ok for someone to believe that twins should be killed but no state should sanction this view. In this kind of case, both teams would be happy, presumably, to endorse a disconnect between public policy and private belief.
However, same-sex marriage, in the absence of more convinving normative analyses, does NOT constitute a matter on which moral truisms can be claimed by anyone. Just as it is extremely arrogant for some religious persons to claim that it is a moral 'fact' that homosexuality - and, so, same-sex marriage - is a moral sin, similarly, it is an exercise in arrogance by Team USA to implicitly assert that same-sex marriage is, as a matter of moral *obviousness*, acceptable, such that public policy must reflect this moral truism.
Yes, related issues, such as the right to not be dismissed at work or ill-treated at work, on the basis of your orientation, constitute clear cases of human rights abuses. Same-sex marriage is not a human rights issue.
In the case of abortion - which Team USA surely must accept as a good parallel for making sense of the relation between public mores and public policy, even if they do not like the twins example - we do not find it wrong that there is moral and legal pluralism in relation to the status of abortion rights. Yes, people passionately debate the issues around abortion, but REASONABLE [INTERNATIONAL] MORAL AND LEGAL DISAGREEMENT is accepted as inevitable and ok.
Remember, this debate is not place-set in a particular country. This is why opposition need not, and did not, take a view on homosexuality's acceptability - or that of same-sex marriage - in that country. Proposition's case is set up as a desire for all countries to enact same-sex marriage laws. Hence, in opposition, as we have done here, and throughout our rebuttal and positive matter, we are articulating why a diversity of views between countries exist, will continue to do so, and why this is ok
Rebuttal 4: Why it is ok for civil marriage to be exclusive
Well, uhm, not really. Here is why.
Ok, so Team USA strategically concedes that religious praxis could be exclusive. Gays do not have a prima facie right to a priest's blessing. Both sides are in agreement here.
But proposition's attempt to move from this concession, to the conclusion that a civil institution CANNOT be exclusive, is hazy and hasty.
It seems clear to us that unless there is an overriding moral reason to change the operation of an institution, the mere fact of exclusion does not constitute a reason, surely?
In other words, the exclusion of gay persons from civil marriage - in some countries - only constitutes a moral error if that exclusion is tied to a *legitimate expectation* on the part of gay persons to be included in the first place. But such an expectation, it would appear, rests on a demand to access the fruits and burdens that come with institution. But if those associated goods can be distributed in equal measure, and same quality, through another mechanism, then the putative entitlement to enter that civil institution, falls away.
This is EXACTLY the case with same-sex marriage. Arrangements such as civil unions - and Team USA has now conceded they are factually wrong about the differences in rights and duties that flow/can flow from civil unions as opposed to marriage - are parallel mechanisms that deliver the same goods as civil marriage.
To argue for inclusion in the institution of civil marriage, ostensibly a case of inclusion for its own sake - or merely for the sake of aesthetics, quite frankly, EVEN WHERE most citizens wish that not to happen, is simply a case of liberal logic going into overrdrive.
Mechanism such as civil unions achieve the best of all possible worlds. On the one hand, they allow laws to reflect public mores by maintaining marriage as an exclusive civil institution (in places where that is desired by the majority). At the same time, they ensure that gay persons are not - wrongly - excluded from the associated rights and benefits of marriage.
In sum, then, to answer Team USA's challenge head-on - to wit, 'If there is nothing in a word, why exclude gay persons?': Because excluding gay persons does not cause harm (e.g. civil unions can be set up) and exclusion ensures that public policies take seriously the aggregate preferences of citizens to impute their collective value on that 'word'.
Again moral and legal pluralism comes out sensible, and the facist imposition of liberal individualism on all societies in the universe comes out decidedly illiberal.
Opposition's clash is sustained.
Rebuttal 5: The danger of putting the liberal cart before the homophobic horse
But the real points are these: 1) same-sex marriage has not resulted in a decrease in homophobic incidents, pace the predictions of Team USA in their first round argument; indeed, 2) same-sex marriage has led to stronger lobbying against gay persons' rights in South Africa by groups that have become organised *in response to* same-sex marriage being legalised [[http://www.sacla.za.net/?component=ddb&operation=page&page=24]]. It is this latter reality that constitutes the social backlash.
Tellingly, proposition concedes this point (!!) when they state - correctly - that
" The South African government was clearly aware that there was "overwhelming opposition to this bill from people throughout South Africa" when they legalized same-sex marriage. It affords same-sex couple legal stature and recognition in a very homophobic atmosphere. "
We deduce from this quote that Team USA regards the South African government as having been hasty to put the liberal cart before the homophobic horse. They should not - we assume prop to be saying here - ignore what most people think. It is refreshing that majoritary views' place in policy design finally gain relevance from Team USA. Thanks for that!
It - the SA government - would have done gay persons a much greater favour by focusing on more substantive gains (like educating persons on the ground about the illegality and wrongness of attacking gay persons) before setting out to design marriage policies that do not speak to the immediate, substantive needs of the gay community. Once again, as Team USA's own response to the SA case studies confirms, it is clear that law as an instrument of social change is unreliable.
Opposition's analysis on social backlash, remains.
Aggressive policies retard gradual social change: why the case for pluralism won [Opposition Summary]
1) To whom is the insitution of marriage valuable, and how valuable is it to those different groups of people?
2) If we are concerned with the rights of homosexuals, how do we most effectively generate substantive equality?
When the debate is painted thus it becomes clear that much of proposition's substantive case was, broadly speaking, tangential to do the debate. Proposition expended a huge amount of energy discussing the Mary Coughlan ammendment, transgender individuals, and the fact that all homosexuals have a bachelors pad and a variety of STD's. On team opposition we decided to focus the debate on the two central questions at stake: Why is marriage important, and what will the consequences be if we legalize same-sex marriages?
In terms of the first issue it was never quite clear what proposition's case was. They mentioned, albeit fleetingly, that marriage brings to the couple a number of legal rights that are otherwise unattainable. They then tracked back, after we showed that civil unions are in most cases legally comparable/equal (and that there is no inherent reason why they cannot be), and instead argued that marriage was an important 'social symbol' (this was never justified, as we said - why do homosexuals have a right to a particular religious or cultural blessing?). If this is all the substantive value that proposition could show, it seems that their case is already on shaky ground.
In response to proposition we argued that marriage has tremendous socio-cultural and religious value to a large portion of most populations. This is evidenced by the fact that in most countries there is a strong majority that rejects the very notion of same-sex marriage. At the same time, we showed that only a tiny number of homosexuals are actually interested in same-sex marriage, evidenced by substantial quantitative research on the UK, the USA and other European countries. We then added extra meat to the discussion by considering the role of the state and the role of public opinion. We argued that we must remain agnostic on the 'morality' of homosexuality, and that it is the business of the citizenry to legislate for itself on such issues. Proposition's glib response to this was that 'majorities don't get their way when it harms minority groups', a sentiment that was (a) normatively unjustified, and (b) falsified in our rebuttal. This is an inadequate challenge of opposition's clash, centred around the acceptability of moral and legal pluralism in respect of same-sex marriage.
The first issue, then, clearly falls to team opposition.
Proposition's case never really managed to leave behind the notion of formal equality (nominally equal rights) for a focus on substantive equality (equal treatment). On team opposition we articulated, from the very start, that it is substantive equality that really matters. We showed that imposing on the cultural and religious interests and values of the majority (of which marriage is a central and important one) can have very dangerous backlashes on the liberal rights movement (invoking the effectively un-rebutted example of South Africa's legalization of same-sex marriage). It was only in response to this substantive attack that proposition finally suggested some link from formal rights to substantive rights - the idea that the state should be a 'pathfinder' for the citizenry. This argument, which was justified by analogy only (and no actual analysis of the example of marriage), was dismantled rather thoroughly by team opposition. We showed that the analogies presented by proposition were in fact entirely and absolutely disanalagous, and that in a vast number of cases the state has not acted as a pathfinder at all. We even showed that, when the state makes decisions that reject the interests and values of the majority (which team proposition's policy clearly does), it often leads to dangerous consequences.
The only other argument made by proposition, that suggested something similar, was their analysis of stereotyping. Here they failed, rather profoundly, to explain why it was that the issue of *marriage* was so crucial in the construction of stereotypes. This failure is symptomatic of the grand failure of their case - to show why it is that legalizing same-sex marriage is of particular importance. On team opposition we produced a number of refutations to this point, showing that the proposition's assumptions about stereotypes were both misguided and not linked to marriage.
It is clear, then that the second question was also answered, most convincingly, by team opposition.
By establishing the right of self-governance as the cornerstone of liberal society, by showing that proposition's case presents benefits that are tangential at best, and by showing that a secular state's imposition on marriage, a religious and cultural institution, will have serious negative consequences in the fight for substantive equality for the gay community itself, we on team opposition beg that the motion fall.