The Instigator
DJBruce
Pro (for)
Losing
10 Points
The Contender
Metz
Con (against)
Winning
27 Points

Banning Same Sex Marriage is Legal in the United States

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Voting Style: Open Point System: 7 Point
Started: 1/2/2009 Category: Politics
Updated: 8 years ago Status: Voting Period
Viewed: 1,546 times Debate No: 6399
Debate Rounds (1)
Comments (2)
Votes (6)

 

DJBruce

Pro

Through out the debate on the legality of banning same-sex marriage, opponents of these bans have claimed them to be illegal citing a few legal sources. Specifically they often cite:
- The Full Faith and Credit Claus
- Equal Protection Clause
- Loving v. Virginia

The Full Faith and Credit Clause, Article IV Section 1, has been used to claim that states must recognize same sex marriages preformed in other states. Yet this argument is flawed because The Defense of Marriage Act, passed in 1996, allows for states to decide for themselves whether or not to recognize marriages between same sex couples. This law which has never been deemed unconstitutional in its thirteen year existence; gives states the power to decide what constitutes a legal marriage makes same sex marriages legal.

Yet some still claim same-sex marriage bans are unconstitutional because they break the equal protection clause but this idea is also completely wrong. The Equal protection clause, Fourteenth Amendment to the Constitution, has been divided into three scrutiny levels and same-sex marriage falls into the rational-basis test. Based on previous Supreme Court cases, specifically United States v. Carolene Products Co., the court has ruled that any any law that falls into the rational-basis category is constitutional as long as the law in question is in question is reasonable related to governmental issues. Since the Defense of Marriage Act makes it a state government issue to decide whether to recognize same sex marriage, any law which would ban same sex marriage would not be an infraction on the Fourteenth Amendment to the Constitution.

Loving v. Virginia is another supposed legal precedent that shows how how same sex marriage bans are illegal. Yet the ruling in Loving v. Virginia in no way references same sex marriage. Also the ruling in Loving v. Virginia was based on a violation of the Equal Protection Clause. As previously showed same sex marriage bans do not violate the Equal Protection Clause and so the ruling, since it is based on the Equal Protection Clause, is completely incompatible with any issue involving the legality of same sex marriage bans.

The final piece of evidence showing that same sex marriage bans are legal is in Baker v. Nelson the Minnesota Supreme Court ruled that the state's laws prohibiting gay marriage did not violate any part of the United States Constitution, not the 1st amendment, 14th amendment, or article IV section II. The court also ruled that Love v. Virginia was not applicable to this case. On appeal to the United States Supreme Court the court dismissed the case "for want of a substantial federal question." This meant that the court felt that the Minnesota Supreme Courts ruling did not raise and constitutional question. This also set the precedent for all lower courts that laws banning gay marriage did not interfere with any part of the constitution and since many lower courts have used it in their rulings including Lockyer v. San Francisco.

So in conclusion unless my opponent wishes to completely overturn numerous legal precedents and laws all found legal I find no way that same sex marriage bans can be found illegal.

Defense of Marriage Act <http://thomas.loc.gov...;
Equal Protection Clause <http://topics.law.cornell.edu...;
United States v. Carolene Products Co. <http://supreme.justia.com...;
Rational-Basis <http://www.law.umkc.edu...;
Loving v. Virginia <http://caselaw.lp.findlaw.com...;
Baker v. Nelson <http://www.cas.umt.edu...;
Metz

Con

This is a short debate so lets get to all the arguments my opponent has given then cover anything else I feel needs to be added.

Full Faith and Credit:
The full faith and credit clause reads "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State" Clearly same sex marriage should be recognized as not doing so would be denying full faith and credit to the laws and records of another state. For example if state A allowed for same sex marriage and a couple were married in state A if they moved to state B where same sex marriage was not legal they state would be required to give full faith and credit to those laws and records and respect the marriage. Thus that provision of the defense of marriage act is clearly unconstitutional and my opponents argument falls.

Equal Protection clause:
The Equal protection Clause reads "nor deny to any person within its jurisdiction the equal protection of the laws." Banning same sex marriage would be to deny homosexual couples equal protection because they are not allowed to marry while others are allowed the marry. This plainly is not equal protection and is thus unconstitutional. Furthermore my opponent brings up the rational basis review. First of All rational basis review should not be used. Strict Scrutiny test is used when There is a claim that a law or action is burdening fundamental rights. Plainly Marriage is recognized as a fundamental right as it is officially endorsed by the government and it has been a right historically, thus Strict Scrutiny is required. Furthermore in order to pass rational basis review the law must show a legitimate government interest. What government interest is there in denying marriage to certain people? NONE whatsoever, unless we are living in Nazi Germany and begin blaming people for the worlds problems.

Loving V. Virginia
In Loving v. Virginia the court found that "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. d" This not only further endorses my previous point but shows that because limits on marriage deprive liberty they are unconstitutional. Clearly this case is admissible and it shows that the supreme court found marriage restrictions to be unconstitutional, this applies to same sex marriages as well.

Baker V. Nelson
What I have shown in Loving v. Virginia supersedes this case as the U.S supreme court holding takes precedence over the Minnesota supreme court. The Fact that the U.S Supreme court did not hear the case does not mean same sex marriage is unconstitutional.

Additional Points I would like to cover.
My opponent sites cases and laws as the warrant for his case, however as we saw in many civil rights cases they are overturned, what i have presented is the actual wording of the constitution. This debate is essentially whether or not it is constitutional or not, not whether or not it is happening.

Thanks to my opponent for preparing this debate and I urge all of you to Vote CON

Sources:
http://www.law.umkc.edu...
http://en.wikipedia.org...
http://www.constitution.org...
http://caselaw.lp.findlaw.com...
http://en.wikipedia.org...
Debate Round No. 1
2 comments have been posted on this debate. Showing 1 through 2 records.
Posted by DJBruce 8 years ago
DJBruce
Sorry for the links I missed a space between the links and the >.
Posted by Metz 8 years ago
Metz
most of those links don't work just to point that out...
6 votes have been placed for this debate. Showing 1 through 6 records.
Vote Placed by jaeden 8 years ago
jaeden
DJBruceMetzTied
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Vote Placed by jjmd280 8 years ago
jjmd280
DJBruceMetzTied
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Vote Placed by JBlake 8 years ago
JBlake
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Vote Placed by KyleLumsden 8 years ago
KyleLumsden
DJBruceMetzTied
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Vote Placed by DJBruce 8 years ago
DJBruce
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Vote Placed by Metz 8 years ago
Metz
DJBruceMetzTied
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Total points awarded:07