Resolved: The US Constitution requires that same-sex couples be given the legal right to marry.
Debate Rounds (3)
I am new to this forum and look forward to many exciting debates! Here it goes...
Resolved: The US Constitution requires that same-sex couples be given the legal right to marry.
I will take the pro position in support of the resolution.
Round 1- State your position
Round 2- Construct your argument
Round 3- Rebuttals (No new arguments)
1)Arguments from a religious, social, or moral perspective are irrelevant unless they can be shown to have bearing on the interpretation of the Constitution.
2)No arguments are to be given in round 1.
1) Requires: deems it to be necessary
2) Same-sex couples: refers to exactly two people
May luck and skill shine on both of us. :)
Introduction: In this debate, I intend to demonstrate through both textual interpretation and legal precedent that the US Constitution in its existing form guarantees same-sex couples the right to marry. To say that the Constitution "requires" granting this right, as the Resolution dictates, is to effectively assert that laws prohibiting same-sex marriage, like the Defense of Marriage Act (DOMA), are unconstitutional. It also asserts that without such right to marry the Constitution is incoherent. My argument follows in two parts:
Contention I: Due Process and Equal Protection
The Joint Reconstruction Committee authored Section 1 of the 14th Amendment in response to the South's rather blatant attempt to curtail African-American rights under the now infamous Jim Crow laws. While the equal protection clause only references state governments, in Bolling v Sharpe, the Supreme Court held that unjustifiable discrimination violates the 5th Amendment:
""the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law"but" discrimination may be so unjustifiable as to be violative of due process."
With reference to the use of the equal protection clause in Brown v. Board of Education, Chief Justice Warren wrote in the Bolling decision that it would be "unthinkable that the same Constitution would impose a lesser duty on the Federal Government." Thus, equal protection under the law, even at a federal level, is written within the very intent of the Constitution and is guaranteed on some level by the 5th Amendment.
But how do we determine if prohibitions against same-sex marriage constitute this violation of due process? First, liberty, as the Court has historically perceived it, does not simply refer to bodily restraint, harm, or all things physical " it concerns an entire gamut of behaviors, beliefs, and interests, one of the most important being the freedom to marry (more on this later).
Second, when the constitutionality of a particular federal or state law is challenged, the Court must decide the appropriate amount of scrutiny that such a law receives. The highest form of scrutiny is "strict scrutiny." A case demands strict scrutiny if the law singles out a "suspect class," and to pass the established "strict scrutiny test," the law must be justified by a compelling state interest (e.g., the preservation of life has been an accepted principle). When a law like DOMA targets the conduct of gays and lesbians and divides populations based on arbitrary, biological aspects like sex or sexual orientation, there is good reason to consider such a group is a "suspect class," especially since such groups of people historically faced violence, mockery, humiliation, and prejudice (this was an accepted fact in both the original decision and appeal of Perry v. Schwarzenegger).
Initially laid out in U.S. v Carolene Products, the strict scrutiny test has evolved over time, from a tool of cost-benefit analysis to a test for encroachments onto civil rights. Nevertheless, the test has consistently held the state to a high burden of proof and always seeks to weigh the material consequences of laws or existing enumerated rights. Abstract institutions (and defining the parameters of such), like marriage, do not present a compelling state interest. Absent of a religious justification limiting marriage between a man and a woman serves no purpose to the state. In fact, this definition hurts state interest as married people are more economically productive, live longer than their unmarried counterparts, and are less likely to be involved in criminal activity. The strict scrutiny test is one of the few judicial tests that actually places a heavy burden on the state. When the law targets a right or privilege of a "suspect class," law itself is immediately held suspect.
Contention II: Loving v Virginia
While the Fifth and Fourteenth Amendments alone would suggest that same-sex marriage remains constitutionally guaranteed, the case against laws like DOMA seems even more damning when applying the strict scrutiny test in context of the judicial determinations made in Loving v. Virginia. In 1967, the Supreme Court ruled that Virginia"s miscegenation laws were unconstitutional because "marriage is one of the basic rights of man;" since race has long been considered a suspect class by the Supreme Court, Virginia"s laws failed the strict scrutiny test as they deprived their "citizens of liberty without due process of the law." Loving solidifies the constitutional case for same-sex marriage not only because it enumerates marriage as a fundamental right under the 9th Amendment but also, because it establishes a connection between due process and marriage law, which naturally extends itself to the same-sex marriage polemic in which we currently find ourselves.
If marriage is a fundamental right, it cannot be alienated absent of a "compelling state interest." "Compelling" has typically referred to necessary functions of the state. The state cannot take children away from one-parent households; it cannot break apart marriages with infertile couples. Nuances or abnormalities in coupling that seem out of place or contrary to biological determinations do not present threats to the state nor do they endanger established marriages or future ones. The principle of marriage as a right has already been upheld in context of same-sex marriage. Loving has been successfully applied in Perry v Schwarzenegger both in Federal District Court in the 9th Circuit Court of Appeals.
With the validation of marriage as a right, however, there persists a common fear that the application of this right to same-sex marriage will implicitly provide a legal validation for polygamy. Perhaps, on some level this may be true; I am not going to speculate on this. Instead, I will offer that there are clear distinctions between laws against polygamy and same-sex marriage where the former should pass strict scrutiny tests and the latter, fail.
Contention III Summary
Given the protections afforded by the 5th and 14th Amendments, the long body of historical precedent that has helped shaped their application, and admission that marriage is indeed a fundamental right, the US Constitution requires that same-sex couples be given the right to marry. To deny this right produces an internal contradiction, and to fall short of labeling unions between man and man or woman and woman as marriage effectively invokes the very outdated adage from Plessy v Ferguson, the idea that separate can still be equal which has time and again been demonstrated to be false. But, we have moved passed this old notion. The Constitution in its existing form guarantees marriage to same sex-couples with nothing less deserved.
Or, anyway, that"s my argument. I hope you find this a solid beginning for the debate, Beginner. I know you are more experienced than me on this forum.
I am a Beginner and I hope to do well in this. (Don't lump expectations on me, I'm very unconfident D:)
Oh, and.. Hi to you too. :)
Introduction: In this first round, I seek to establish several cases which will serve as foundations for the case against Constitutional requirement of gay marriage. Laws effecting prohibitions against gay marriage are not unconstitutional.
I. Freedom of speech, press, religion, etc.
The first amendment of the US Constitution says: Congress shall make no law respecting an establishment of religion, or prohibiting the free practice thereof.
This means that religious practitioners are allowed to excercise their religious freedoms without the interference of the government. It also means, when applied to this case, that gay marriage cannot be imposed and may be performed by the pastor of any religious society according to the rules of the religious society.
Here is a distinct contracdiction within the Constitution: Amendment one also allows for those within the gay community to practice religion and, subsequently, have marriage as a legal right.
This contradiction says two things:
1.The US Constitution was drafted with many things in mind, but homosexual marriage union is not one of them.
2. This is, in fact, left to the devices of the states. This is perfectly Constitutional since the Constitution institutes a federalist system. The tenth amendment says: The powers not delegated to the United States by the Constitution, nor prohibited by it [,meaning the constitution,] to the States, are reserved to the States respectively, or to the people.
3. Since the Constitution neither limits nor ordains the legal marriage of gays, my opponent's premise, that the US Constitution requires the legal right of marriage to be given to the gay community, is false. Whether or not Homosexual marriage is legal is ascribed to the discretion of individual states.
There are also clauses in the Constitution that act contradictorily in favor of and against state power. In fact, the Constitution is full of contradictions. Although it is the supreme law of the land, it is open to interpretation and does not, in itself, require anything beyond it's very explicit laws/statements. Since my opponent's premise is based entirely on interpretation and judicial cases and not on explicit clauses directly related to the case in question, this resolution can, in no way, be true.
One can argue from the stance slavery and say that slavery, while widely institutionalized within the nation, is ruled to be unconstitutional under the same context as homosexual marriage, but, once again, this is based solely on interpretation. Before the 13th Amendment, the judicial reviews that invalidate this institution also base their invalidation under constitutional interpretation. The Consitution did not ever require slavery be practiced or abolished before the 13th amendment.
Since semantics were not prohibited, here goes:
I, as a physical human being, can force requirements on others by physically creating an actual or potential physical barrier that requires circumvention. The Constitution, as a piece of paper, cannot, in any way, require anyone to do anything. Some can argue that it does, through its lawful institution, install a certain set of requirements, but those who actually create the physical requirement are those who wish to do so.
The law requires nothing. It is the people who follow the law of their own free will that require others to also follow the law and their interpretation of it.
Interpretation =/= requirement by the Constitution
I will admit, the Consitution has many provisions that can be interpreted to imply gay marriage a legal right, but this is not the same as the US Constitution actually requiring gay marriage.
I am sorry of my round isn't as long/fulfilling as yours, but I don't see how I can create further disputation without having it seem insignificant in light of my other contentions or seeming redundant.
*The Constitution's clauses and articles are published through many, many mediums. I am unable to select any particular one to source and will, therefore, shirk the sourcing and hope it will work out when it comes to voting (please don't kill me D:)
Con"s argument boils down to a discussion on what constitutes a "requirement" and whether "interpretation" can impose a constitutional "requirement." If you are judging this round, I urge you to look back at Con"s arguments for a refresher; this may become a complex debate. In any event, I will try to make this part of the debate as clear as possible by highlighting Con"s arguments from the second round before my responses:
1. "The Constitution"cannot"require anyone to do anything."
A. Stipulations: By accepting an invitation for this debate, Con accepted the definition of "requires," which was explicitly stated to be "deems to be necessary." This definition denotes the legal sense as per the syntax of the resolution "requires granting same-sex couples the legal right to marry." This definition can in no way be taken to mean a sort of physical force. Con"s complaints about "requirement" only have bearing in the word"s relationship to a challenge of "interpretation." I will take up a more extensive discussion of "requirement" and "interpretation" in my next sub-section.
B. Permutation: My opponent suggest that individuals, not laws, create and enforce requirements, and while it may be true that judges might articulate their own beliefs when articulating certain liberties or privileges contained in the Constitution, this does not preclude the fact that the Constitution contains requirements itself (insofar as judges have interpreted these requirements under the authority of Marbury v Madison). I will elaborate on this concept in just a moment.
C. Literature: Legal literature supports Pro"s choice of the word "requires" and demonstrates the Constitution can in fact "require": "In Gideon v. Wainwright (1963), the Supreme Court ruled that the Constitution requires the states to provide defense attorneys to criminal defendants""
2. "Interpretation =/= requirement by the Constitution"people who follow the law of their own free will"require others to also follow the law and their interpretation."
A. Concept of a Legal Requirement: The Constitution is a body of laws, whose mandates, meaning, and content is malleable depending on the decisions of the Supreme Court. Police officers, judges, and other officials enforce the laws, and to say that the Constitution "requires" a certain liberty or privilege presupposes the legal and pragmatic force of that document. To legally "require" a liberty or action, is to say the Constitution not only allows for such a thing to exist but also necessitates ("deems to be necessary") the existence of such an institution according to the existing body of precedent provided by legal interpretation. "Interpretation" has long been a necessary and proper role of the Judicial Branch; it explicates the contents of the Constitution (Marbury v Madison). The Constitution cannot be read verbatim, as Con supposes, because it asserts generalized concepts like "due process" or "liberty" that require further explication and understanding.
B. Interpretation and Requirement: Cross-apply sub-point C from above. Once the Constitution has been interpreted to provide a certain liberty (like the entitlement of a defendant to legal counsel), it now exists as a legal requirement, which is all the resolution asks Pro to prove. Given the body of existing precedent and interpretation, if Pro has successfully argued that the Constitution requires giving same-sex couples the legal right to marry, vote Pro.
C. Con Implicitly Concedes Pro"s Interpretation of "Requires:"
"Some can argue.. [the Constitution], through its lawful institution, install[s] a certain set of requirements" " Now, "Installing a requirement" = "creating a requirement" and creating a requirement in the legal sense is the same as "requiring a requirement" to exist. The last phrase, of course, is redundant, so the proper verb is "requires," as the resolution dictates.
II. Other Arguments
"1. 1st Amendment/ Contradiction"
A. Marriage is a also a Civil Institution: This is why couples need a government marriage certificate and why thousands of various federal and state laws regulate marriage. The legalization of same-sex marriage does not affect religious freedoms or institutions.
B. The 1st Amendment Protects: The 1st Amendment would protect religious institutions from these kinds of constitutional requirements. Again, my argument only concerns whether same-sex couples can be legally married in the eyes of the government.
C. Con has not submitted evidence for other, relevant contradictions.
"2. The Constitution does not mention marriage."
A. Equal Protection/ Due Process: Though you are right to assert the Constitution does not explicitly mention marriage, the Constitution is built as a sort of blueprint for the regulation and application of law (so it doesn"t have to mention marriage to protect equal application of that institution). As per my previous argument, the Constitution does guarantee protection from "unjustifiable discrimination" and affords equal protection/ due process at the state and federal level (this has been uncontested). So, as long as the government grants marriage, recognizes marriage, and regulates marriage, the Constitution recognizes the imperative for equality within this institution because any laws against same-sex marriage fail the "strict scrutiny test" (also uncontested)."
B. 5th and 9th Amendments/ Loving v Virginia: The 9th Amendment explicitly states not every right that exists has been explicitly described in the Constitution, and the 5th Amendment protects against intrusions upon these liberties. Privacy, for example, is not explicitly described in the Constitution, but it has since long been upheld as a protected liberty under the 5th Amendment.
"3. 10th Amendment, left to the states"Contradiction"
A. 10th Amendment prohibits states from violating the US Constitution: The relevant text reads, "The powers not delegated"nor prohibited by it to the States"" Any state laws against same-sex marriage would violate this amendment. Also, I have presented many arguments on the applicability and necessity of equal protection/ due process marriage guarantees at a federal level in the first round. I extend these arguments. State sovereignty cannot override the 5th Amendment. The 9th Circuit Court of Appeals agreed when it ruled that California"s Proposition 8 against same-sex marriage contradicted provisions in the US Constitution.
B. Loving v Virginia: As stated before, this case established marriage as a fundamental and federal liberty that cannot be deprived by any state. That the Supreme Court ruled the US Constitution trumped a Virginia (state) law against interracial marriage demonstrates marriage can fall into the Constitution"s domain and remains a federally protected right.
4. "Since my opponent's premise is" not [based] on explicit clauses"this resolution can, in no way, be true."
A. False: I quoted both the 14th and 5th Amendments and stated their relevance to same-sex marriage.
A. Equal Protection and Due Process: Con has conceded the applicability of the 14th and 5th Amendments to same-sex marriage, contesting, at most, the there exists some sort of "contradiction" in the Constitution. Pro has successfully defended against this claim and proven that relevant clauses demand a legal requirement.
B. Loving v Virginia: Con concedes Loving v Virginia as precedent, which establishes marriage as a fundamental right, and its relevance to same-sex marriage.
Before I start I have to comment: Pro has done a very good job in professionally allocating information into a long rhetoric for the institution of gay marriage as a legal requirement under the constitution. The formatting makes the text easy to read and the division of premises clear, concise. I applaud your efforts and hope you can continue to shine in the future.
However, none of my contentions were effectively proven false as my opponent claims. I will begin by refuting several second round assertions.
"First, liberty, as the Court has historically perceived it, does not simply refer to bodily restraint, harm, or all things physical " it concerns an entire gamut of behaviors, beliefs, and interests, one of the most important being the freedom to marry"
Since the Constitution is the basis of argument and source of all real evidence, I would kindly like my opponent to point out the area in the Constitution in which his definition of liberty is the Constitution's definition of liberty. Sarcasm aside, my opponent concedes the fact that it isn't the Constitution that defines liberty. The Court historically perceives a weather-worn definition. The court =/= The Constitution This case is irrelevant.
"With reference to the use of the equal protection clause in Brown v. Board of Education, Chief Justice Warren wrote in the Bolling decision that it would be "unthinkable that the same Constitution would impose a lesser duty on the Federal Government." Thus, equal protection under the law, even at a federal level, is written within the very intent of the Constitution and is guaranteed on some level by the 5th Amendment"
The 5th Amendment, contrary to my opponent's statement, does not actually guarantee any level of equal protection. It is a clause that basically says, and here I will quote my textbook:
'A person can be tried for a serious federal crime only if he or she has been indicted. . . No one may be subjected to double jeopardy."
This is made with the intent to prevent abusive courts trialing a person at will for any and all infractions, not to effect equal protection under the law, as my opponent has claimed. Another irrelevant claim (this one is based on a false understanding of Constitutional text.)
The statements about Judicial Review of laws; the stuff about strict scrutiny, etc. are irrelevant as they do not correlate with the resolution. Supreme Court Judges =/= THe Constitution. . . Judicial Review =/= Constitutional Requirement.
It is apparent that my opponent's entire first round cleverly puts on a facade of supporting the resolution when it is, in fact, not doing anything of this sort.
1A. " By accepting an invitation for this debate, Con accepted the definition of "requires," which was explicitly stated to be "deems to be necessary."
What else would "requires" mean? Of course I accepted this definition
I gladly accepted this definition and argued the falsity of my opponent's refutation under it. I don't see how pointing out accepted parameters will aid my opponent in proving his resolution.
"This definition can in no way be taken to mean a sort of physical force"
Yes it can. Ponder it. If you need help: read my round 2 example again.
"This definition denotes the legal sense as per the syntax of the resolution "requires granting same-sex couples the legal right to marry"
I have already countered this. Although legal requirements are derived from the Constitution, the Constitution itself is a piece of paper and requires nothing. I stated quite clearly that it is the people who follow the constitution and enforce/create requirements. Let me take my example to the extreme to help you better understand this concept. Say we built a time machine and sent the Consitution back in time 10,000 years. What can it do then? What can it do now? There is no change. The only change is that the english-speaking human population who chose to abide by its clauses no longer exist. The people are the ones who create requirements, not the Constitution.
"C. Literature: Legal literature supports Pro"s choice of the word "requires" and demonstrates the Constitution can in fact "require": "In Gideon v. Wainwright (1963), the Supreme Court ruled that the Constitution requires the states to provide defense attorneys to criminal defendants""
After claiming the Constitution 'can in fact require', my opponent immediately follows this statement with the case of Gideon v.Wainwright, in which the Supreme Court interprets the Constitution to require states to provide defense attorneys to criminal defendants. This is exactly my point: The Supreme Court =/= the Constitution. This only serves to further my case and diminish my opponent's faulty resolution under my premise.
2A also falls under this. Again, the Constitution requires no action. only those who follow the Constitution require actions. Suppose each and every US citizen, law enforcer, politician, etc. decided to practice anarchy.. what's the Constitution then but a scrap of paper? The point is that without the people to create requirements based on the Constitution, the Constitution in itself is impotent.
2B also falls to this supposition.
2C says: "Con Implicitly Concedes Pro"s Interpretation of "Requires:"
"Some can argue.. [the Constitution], through its lawful institution, install[s] a certain set of requirements" " Now, "Installing a requirement" = "creating a requirement" and creating a requirement in the legal sense is the same as "requiring a requirement" to exist. The last phrase, of course, is redundant, so the proper verb is "requires," as the resolution dictates."
My opponent is guilty of misinterpretation. I very clearly prefaced my statement with "Some can argue.." meaning this is not my position but the position of strawmen. I proceeded to knock these strawmen straight to the moon, so this 'implicit concession' does not exist.
I concede IIA and IIB as the argument being refuted under these 2 sections are indeed irrelevant.
IIC. Con has not submitted evidence for other, relevant contradictions.
Slavery legal/illegal property rights vs. human rights vs. religious rights vs. state rights. If the Constitution did not have the capacity for contradictions, we would no longer need our Courts.
2A." As per my previous argument, the Constitution does guarantee protection from "unjustifiable discrimination" and affords equal protection/ due process at the state and federal level (this has been uncontested). "
What does this have to do with constitutional requirement? Providing a guarantee is not the same as creating a requirement. I can guarantee a friend a dollar, but it doesn't require me to give it to him, nor does it require him to take it.
"4. "Since my opponent's premise is" not [based] on explicit clauses"this resolution can, in no way, be true."
A. False: I quoted both the 14th and 5th Amendments and stated their relevance to same-sex marriage."
Meaning my opponent relates it based on his and court interpretation. People and their interpretations create the relevance, not the constitution. Limitation on gay marriage itself is open to categorization/interpretation as "unjustifiable discimination." The Constitution doesn't decide this, courts do. As I've stated before the Courts =/= the Constitution.
A. Equal Protection and Due Process: Con has conceded the applicability of the 14th and 5th Amendments to same-sex marriage."
False. I just contended against it (only could do so now due to debate parameters)
"contesting, at most, the there exists some sort of "contradiction" in the Constitution""
I'm pretty sure I had much more than: "There's a contradiction in the Constitution!!"
"B. Loving v Virginia: Con concedes Loving v Virginia as precedent, which establishes marriage as a fundamental right, and its relevance to same-sex marriage."
AGAIN Court =/= Constitution
My premises have (aside from IIA&B) been either ignored (people create requirements) or inadequately refuted. The resolution is effectively disproved. Con wins.
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