The Instigator
libertarian
Pro (for)
Losing
35 Points
The Contender
KRFournier
Con (against)
Winning
44 Points

The Defense of Marriage Act is unconstitutional.

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Voting Style: Open Point System: 7 Point
Started: 10/4/2008 Category: Society
Updated: 8 years ago Status: Voting Period
Viewed: 2,599 times Debate No: 5632
Debate Rounds (3)
Comments (2)
Votes (12)

 

libertarian

Pro

Gay marriage is supa cool.

1. The 14th amendment of the Constitution states that "no state shall deny equal protection under the laws." The Defense of Marriage Act forces the government to discriminate against gay couples who want to get married. Gay couples are clearly not protected equally under the laws.

2. The Supreme Court case, Loving vs. Virginia, states that marriage is "civil right." This case was referring to interracial marriage in the 60s. But there is a direct and obvious parallel.

3. The Full Faith and Credit Clause (Article 4, Section 1) of the constitution states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." This means if I get married in one state, like Massachusetts and California, the next state I move to should recognize my marriage. And the government should give full faith and credit to my marriage.
KRFournier

Con

I'd like to first thank the instigator for starting a debate on a topic that has certainly seen little light recently.
Just so we're on the same page, let's define what the Defense of Marriage Act is. To quote http://www.lectlaw.com...:

"The Defense of Marriage Act (DOMA) does two things. First, it provides that no State shall be required to give effect to a law of any other State with respect to a same-sex 'marriage.' Second, it defines the words 'marriage' and 'spouse' for purposes of Federal law."

The full text of DOMA can be found here: http://en.wikisource.org....

I'd also like to put forth a definition of marriage as quoted from http://en.wikipedia.org...:

"Marriage is an institution in which interpersonal relationships (usually intimate and sexual) are acknowledged by the state or by religious authority."

1. The equal protection clause states that "no state shall… deny to any person within its jurisdiction the equal protection of the laws." DOMA does not force any state to deny any person from experiencing the protection of its marriage laws, since all people have the right to enter into heterosexual union. What DOMA does do, is clarify marriage to be understood as a being between one man and one woman. As such, a law granting protections to a heterosexual marriage does not automatically carry over to that of a same sex union in the same way that a law granting protections to a biological mother does not automatically carry over to that of a legal guardian. Equal protection does not mean that all people get all protections of all laws. The states are still granted the power to modify legislation in order to grant the same protections to same sex unions as that which are currently granted to marriages. Since DOMA does not prevent states from improving same sex unions nor prevents anyone from entering into marriage, DOMA does not violate equal protection.

2. The parallel between DOMA and Loving vs. Virginia is not direct. DOMA simply clarifies terms "marriage" and "spouse." All citizens are allowed to marry the opposite sex; therefore, there is no loss of civil rights. Any citizen can choose to marry the opposite sex without discrimination by the state. It may very well be argued that same sex unions lack the same benefits and protections as marriages, but this is not an issue DOMA seeks to address. Whether a state's same sex union laws are in violation of civil rights is a separate issue that must be addressed separately. Since the DOMA does not prevent anyone from entering into marriage, it does not violate civil rights.

3. Let's look at the Full Faith and Credit Clause again. It states, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." As mentioned by the proponent, this means that a marriage in one state must be recognized by another. DOMA does not violated Full Faith on two counts:

a) Since DOMA defines marriage to mean a heterosexual union, the conflict is erased. States like Massachusetts may choose to call a same sex union marriage, but the United States Code will not recognize it. If Massachusetts insists on defining marriage in their own terms, they violate United States Code. If they concede that what Massachusetts calls marriage can be considered merely a same sex union in other states, then the same sex union carries over. Since DOMA redefines marriage on a national level, and since states enter into self-contradiction when attempted to redefine marriage on their own, DOMA does not interfere with the Full Faith and Credit Clause.

b) The second sentence of the Full Faith and Credit Clause grants Congress the power to determine how things like records carry over. In fact, Congress used the second sentence to justify DOMA in the first place. DOMA was passed by Congress to avoid possible conflicts between states recognizing marriage as same sex and those not. In other words, Congress passed the Act to protect state rights. Since DOMA is permitted by the Full Faith and Credit Clause, it does not violate the Full Faith and Credit Clause.

Since DOMA does not violate equal protection, civil rights, or the Full Faith and Credit Clause, it is not unconstitutional. The Defense of Marriage Act is indeed controversial. While it may be considered unfair or non-progressive, it is not in violation of the Constitution.
Debate Round No. 1
libertarian

Pro

As far as definitions go:the definition of DOMA you have is from framers of the bill. The fact is that the bill does more than make it so that a state is not forced to recognize same sex marriage. It ensures that no state (even one that legalises same sex marriage) can recognize same sex marriage. There are 1,138 federal rights for married couples. Gay couples in California and Massachusetts, where marriage is recognized, are given state benefits, but are not afforded the 1,000+ federal benefits. This is the fault of the DOMA. I use your sources, because we say the same thing. I, of course, give the whole story.

I accept your definition of marriage to this point.
__________

Here are some points I've forgotten:

4. DOMA violates state's rights. The 10th amendment guarantees state's rights. (http://en.wikipedia.org...) There are 1,138 federal marriage benefits. However, DOMA makes it impossible for the state to give same sex couples these rights. This clearly violates the state's rights to regulate marriage as it chooses.

5. The DOMA is a reaction to the FACT that banning same sex marriage equality is unconstitutional. Hawaii had realised that same sex marriage inequality was unconstitutional. In a reaction, the federal government decided to make a law to make sure that states were not binded to listen to the constitution. However, a law cannot overrule the Constitution. Just more proof of the unconstitutionality of DOMA. (http://www.answers.com...)

1. A) CON says that DOMA does not force any state to deny any person protectino of its marriage laws. But this is unrealistic. Realistic science tells us that being gay, lesbian, or bisexual is not a choice. (http://www.apa.org...) (http://www.healthyminds.org...) To deny gay, lesbian or bisexual persons the right to marry who they want to is to discriminate against them. Because it is unfair and unrealistic to expect a gay, lesbian, or bisexual person to marry a heterosexual person. Giving a lesbian, gay, or bisexual person the option only to marry a person of the opposite sex is no different than giving heterosexuals the right only to marry people of the same sex. It is discriminatory and unfair and it violates the Equal Protection Clause of the Constitution.

B) DOMA is an obvious violation of the Equal Protection Clause, because it makes heterosexual marriages and sam sex marriages unequal. A heterosexual marriage gets 1,138 federal benefits that a same sex marriage is not allowed to get due to the unfair law of DOMA. (http://equalitywithoutmarriage.org...)

C) CON states that "equal protection does not mean that all people get all protections of all laws." This is true. However, Supreme Court cases in the past have proved that it is unconstitutional to discriminate against homosexuals in a way that takes away civil rights. Those cases include the famous sodomy case, Lawrence vs. Texas, and the civil rights case, Romer vs. Evans. (http://www.nyblade.com...)

D) Also, previous cases have shown that marriage is a civil right protected by the Constitution. The best example is the case of Loving vs. Virginia. The opinino of the court unanimously is that marriage is a civil right. (http://www.law.umkc.edu...)

2. A) CON says "it may very well be argued that same sex unions lack the same benefits and protections as marriages." Well, I am. DOMA takes away 1,138 federal marriage benefits from same sex couples. If this is not unequal, nothing can be considered unequal.

B) It is discriminatory to say that gay, lesbian, and bisexual persons must marry a person of the opposite sex. It would be equally discriminatory to force heterosexuals to marry persons of the same sex. This violates the Equal Protection Clause.

C) DOMA is discriminatory. It does not allow the federal government to recognize same sex marriages, which is not equal protection under the laws.

3. A) The fact that DOMA defines "marriage" a certain way does not mean anything, because the entire law is unconstitutional.

B) If Massachusetts defines "marriage" on their own terms, they are doing so for the purpose of their state. The definition of "marriage" in Massachusetts is altered to give same sex married couples state marriage benefits, which is the evident right of the state. If Massachusetts defines marriage as one way, it is the duty of all 50 states to recognize the marriage license. This is the purpose of the "Full Faith and Credit Clause."

C) Finally, Congress does not have the power to decide exactly when and which licences are in effect. The Congress can only generally say that certain licences are unrecognized. The Full Fath and Credit Clause allows the Congress to make "general laws" about the application of licences. However, DOMA attempts to tell when marriage is allowed and when marriage is not specifically.

D) Also, the Full Faith and Credit Clause is still CLEARLY violated. Because sure, DOMA defines "marriage" a certain way for the federal government. But if California defines "marriage" to include same sex couples, then it is still the responsibility of Georgia to recognize that marriage. The DOMA allows states to ignore other states' marriage licenses.

--- There are 1,138 federal marriage rights and DOMA takes away those federal rights from same sex couples. This is blatant inequality. And Loving vs. Virginia has ensured that equal marriage is basic civil right. While discriminating against homosexuals has been proved unconstitutional by cases including Romer vs. Evans and Lawrence vs. Texas. Finally, gays, lesbians, and bisexuals should be afforded equal rights in marriage, because it is unreasonable to expect them to join a heterosexual union, just like it is not reasonable to expect heterosexuals marry a person of their sex.
KRFournier

Con

I again thank the proponent for this invigorating debate. I'll jump right in…

4. Quoting from my opponent's resource (http://en.wikipedia.org...), a quote from United States v. Darby reads, "The amendment states but a truism that all is retained which has not been surrendered." From the same resource, it is pointed out that "the Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment." Could DOMA be such a rare exception? If anything, DOMA protects tenth amendment rights by ensuring the decisions of one state are not forced upon another. The proponent states that "DOMA makes it impossible for the state to give same sex couple these rights." How so? DOMA simply regulates transference of records from one state to another. It says nothing about preventing states from giving additional rights to same sex couples.

5. My opponent says, "The DOMA is a reaction to the FACT that banning same sex marriage equality is unconstitutional." There are two problems with this singular statement. First, he is appealing to the alleged motives of DOMA, as though motives are sufficient in determining the constitutionality of anything. Second, the statement is simply incorrect. According to his own resource (http://www.answers.com...), DOMA was a reaction to the concern that if Hawaii were to legalize same-sex marriage, then other states would be forced to do the same. The motives of DOMA are further substantiated by a resource I offered earlier (http://www.lectlaw.com...), which states that approximately 30 states were so alarmed at the decision of Hawaii they began legislative efforts to defend themselves from being forced to recognize Hawaii's decision. In other words, DOMA was a reaction to having to give "full faith and credit" to Hawaii's same-sex marriage laws, not to the alleged fact that banning same sex marriage equality is unconstitutional.

My opponent also engages in half truth when stating that "Hawaii had realised [sic] that same sex marriage inequality was unconstitutional." Again, I must point out that my opponent's own resource is much more specific than he would have us believe. His own resource points out that "the Hawaii state supreme court, in Baerh v. Levin, found that denial of marriage licenses to same-sex couples violated the state constitutional prohibition on discrimination on the basis of sex." Hawaii's decision had to do with the state constitution, not the federal constitution. Furthermore, my opponent's resource goes on to point out that Hawaii later overturned the decision by an amendment to its state constitution. I felt it necessary to point out my opponent's poor scholarship in this case.

The remainder of my opponent's point relies on the motives of DOMA, which are inadmissible insofar as constitutionality is concerned.

1. A) The proponent and I agree on one thing, it is certainly unrealistic to expect homosexuals to enter into heterosexual marriage in order to gain those particular protections. However, as per the definition of marriage upon which we agreed, it is an institution. DOMA clarifies the current marriage institution to mean a heterosexual one. It follows, then, that homosexual marriage is a separate institution with its own protections. Indeed, we see this to be the case giving the recognition of civil unions by some states. DOMA does not, in any way, prevent states from making both institutions equal. In fact, Massachusetts does exactly this in spite of DOMA. Therefore, DOMA does not violate equal protection.

B) My opponent says, "A heterosexual marriage gets 1,138 federal benefits that a same sex marriage is not allowed to get due to the unfair law of DOMA." This is incorrect. Same-sex marriage protections are disallowed due to the state, not to DOMA. DOMA does not force a state to be unfair.

C) This point restates my opponent's civil rights issue from his original point 2. Therefore, I'll defer the rebuttal to point 2 below. However, I'd like to point out to the voters that my opponent's reference for cases Lawrence vs. Texas and Romer vs. Evans had nothing to do with those cases directly.

D) This point simply restates of the proponent's original point 2, and offers no rebuttal of my response. I'll defer then to point 2 below.

2. My argument is that DOMA does not prevent anyone from entering into heterosexual marriage. A person of any race, creed, religion, sexual orientation, etc., may marry a person of the opposite sex. Loving vs. Virginia was an important case because some states prevented citizens from entering into the marriage institution based on race. DOMA does not prevent anyone from doing this. Granted, it is unreasonable to expect homosexuals to enter into heterosexual marriage, but we dealt with that issue in point 4.

A) DOMA does not add or remove benefits. DOMA simply leaves those benefits up to the state. The state may be wrong or unfair, but that does not make DOMA unconstitutional. As pointed out earlier, DOMA does not prevent a state from giving the same 1,138 benefits to same-sex marriages. If there is unequal treatment, it is the fault of the state, not DOMA.

B) My opponent says, "It is discriminatory to say that gay, lesbian, and bisexual persons must marry a person of the opposite sex. It would be equally discriminatory to force heterosexuals to marry persons of the same sex." Notice the use of the words must and force. DOMA does not force a citizen to marry anyone against their will. While a homosexual will "feel" forced into heterosexual marriage for the additional benefits, it is not because DOMA compels them to.

C) My opponent says, "DOMA is discriminatory. It does not allow the federal government to recognize same sex marriages, which is not equal protection under the laws." DOMA does not prevent the federal government from recognizing anything, let alone same sex marriage. At most DOMA clarifies that any federal law pertaining to marriage refers to heterosexual marriage. However, Congress is still granted power to create new laws for same-sex marriage or update older laws to include same-sex marriage.

3. A) My opponent engages in circular reason. He says, "The fact that DOMA defines "marriage" a certain way does not mean anything, because the entire law is unconstitutional." However, the unconstitutionality of DOMA is what we are debating. He must first win the debate before he can show that DOMA's definition of marriage is meaningless.

B) My opponent says, "If Massachusetts defines marriage as one way, it is the duty of all 50 states to recognize the marriage license." If DOMA is constitutional, then this statement is false. If DOMA is unconstitutional, then this statement is true. Until my opponent wins or loses the debate, this statement is meaningless.

C) The proponent must show how DOMA "attempts to tell when marriage is allowed and when marriage is not specifically." DOMA does not force anything. If anything, without DOMA, states are forced "to tell when marriage is allowed and when marriage is not" when they are forced to recognize the marriage laws and benefits of another state. DOMA, if anything, is quite general as it leaves the decision up to the individual states.

D) This appears to be a summary of points A, B, and C, to which I have responded.

There is no doubt as to the controversial nature of DOMA. The idea that same sex marriage is not getting the same benefits and protections as heterosexual marriage generates a lot of heating emotion. But how we react or feel about DOMA should have no bearing on whether or not it's constitutional. My opponent clearly thinks that same-sex marriage ought to have the same protections as heterosexual marriage. No matter how convinced he may be of that need, it is not sufficient evidence as to the constitutionality of DOMA.
Debate Round No. 2
libertarian

Pro

libertarian forfeited this round.
KRFournier

Con

This was an interesting debate, and I thank my opponent for instigating it. It is unfortunate we could not compete in a final round. I will extend my arguments from Round 2 and leave the voters with a closing statement.

This debate is about whether or not the Defense of Marriage Act is unconstitutional. My opponent would have you believe that DOMA has removed rights once possessed by same sex marriage or prevents such rights from ever occurring. Neither is true. No rights are taken away. No rights are prevented. Is DOMA non-progressive? It would seem that way too many. Does it add controversy to an already heated debate? There is no doubt about it. Does it violate the federal constitution? Not in the least.

Please vote Con. Thank you.
Debate Round No. 3
2 comments have been posted on this debate. Showing 1 through 2 records.
Posted by magpie 8 years ago
magpie
Libertarian argues from the homo-centric point of view. All of the benefits that are afforded to married couples accrue to all who are married, regardless of the sexual preferences of the individuals. The federal government (rightly) does not care about your sexual orientation. Is the Fourteenth violated because pedophiles are not permitted to marry children? Of course not! Pedophiles may marry. They have the same right to marriage as anyone else. If they choose to marry another adult, the state has no power to prevent the marriage, nor does it care about the sexual orientation of one or both of the individuals, involved. Some among us, would like to marry more than one spouse; not I, of course. Others would prefer some animal. The law is not concerned with what you prefer to do in the bedroom.
I can imagine that there are some heterosexual individuals, who, for some reason known only to them, would prefer to marry others of their own sex. No can do! It is not about orientation and therefore not about discrimination. Being gay is not the same as being black, white, or yellow. Nor is it the same as being male or female. These are intrinsic, observable qualities that can be discriminated for or against. Gayness or straightness cannot be determined by observation. Therefore, only those who pin the label on themselves can claim that they are discriminated against.
Posted by KRFournier 8 years ago
KRFournier
Libertarian, I hope your email notification regarding this debate didn't slip into the spam folder. With 16 hours to go (as of this comment), it's getting down to the wire.
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