The Instigator
Pro (for)
4 Points
The Contender
Con (against)
18 Points

The Federal Defense of Marriage Act is Unconstitutional

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Voting Style: Open Point System: 7 Point
Started: 4/12/2009 Category: Politics
Updated: 9 years ago Status: Post Voting Period
Viewed: 5,271 times Debate No: 7818
Debate Rounds (3)
Comments (9)
Votes (5)




Hello to anyone who accepts this

Note that this debate will mainly revolve around constitutionality and legal arguments, not things like religion, theories of morality, or social acceptability.

I stand in affirmation of the resolution

The Federal Defense of Marriage Act (DOMA) states the following:

1.) No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state. (1)

2.) The federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states. (2)

The first part of this law is unconstitutional due to the 'full faith and credit' clause of the constitution, which states the following:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." (3)

DOMA allows states to disregards the "public Acts" and "judicial Proceedings" of other states. Therefore, it violates the full faith and credit clause and is unconstitutional.

The second part of DOMA is also unconstitutional.

Marriage is partly a religious institution, but it is also a civil institution (4). The religious aspect is mainly for personal recognition. The government obviously cannot regulate this aspect of marriage. However, marriage is also an important civil institution. There are hundreds of benefits that arise from having the government recognize your marriage with a marriage license. Some of these involve social programs, tax codes, and insurance benefits.

The second part of DOMA denies same-sex couples all the benefits of civil marriage. This is discrimination. This violates the due process clause and equal protection clause of the fourteenth amendment, which read:

"nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (5)

Now, I've heard the following response to the point I just made: "Well, homosexuals aren't denied equal rights. Both can get their marriage rights by marrying one person of the opposite sex. Therefore, things are equal."

The above statement is false. Things are not equal between hetero and homosexuals. While it is true that marriage law applies equally to all people, the law is clearly slanted to favor one class over another. The law is clearly designed to discourage homosexual relationships, which is discriminatory to homosexuals, even if the law applies equally to all people. It may be argued that there is no de jure discrimination, but there is undoubtedly de facto discrimination. In fact, there is de jure discrimination, because DOMA explicitly outlaws gay marriage. Parallels can be drawn between this and racial segregation. Racial segregation laws applied equally to all races, but were clearly slanted to favor whites over blacks, so these laws were still discriminatory.

I've also heard the argument that homosexuality is sexual perversion. I would like to point out that this doesn't really have anything to do with the constitutionality of DOMA. Even if it did, the perversion argument is negated by supreme court case "Lawrence v. Texas", which held that there is a constitutional right to sexual privacy, and that laws criminalizing sodomy between adults of the same sex are unconstitutional (6).

Many people say that they are opposed to homosexual marriage, but find no problem with civil unions. While civil unions do help homosexual couples attain more rights, civil unions are not acceptable in the need for equality. Civil Unions confer the exact same rights as Marriages, but they are a different institution. This is "separate-but-equal". Separate-but-equal was the standard used to oppress Blacks and other Minorities for nearly 100 years. Landmark supreme court case "Brown v. Board of Education" declared that "separate educational facilities are inherently unequal." (7). The ruling relied partly on pyscological studies that showed that segregating races and reserving certain schools for certain races was highly damaging to the mental states of the Blacks being segregated. The same concept can be tied to segregating homosexuals from marriage. After all, children are raised to believe that they will one day get married live happily. Homosexuals, on the other hand, are forced to repress their early childhood beliefs and settle for a 'civil union'. Evidence of psychological damage to homosexuals can be found in the fact that they have considerably higher rates of suicide than heterosexuals (8). Therefore, we can conclude that the standards used in "Brown" apply to issues of homosexual marriage today.

I would also like to point out that DOMA does not stand up to the standards of intermediate or strict scrutiny, which state that discrimination cannot be permitted unless it has a compelling government interest or important governmental interests (9). Because it does not stand up to these standards, it is unconstitutional.

Finally, I would like to quote Iowa Supreme Court justice Mark Cady, in the recent ruling by the Iowa Supreme court legalizing homosexual marriage in Iowa:

"We are firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective," and "The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification." (10).

For all the above reasons, I affirm the resolution that DOMA is unconstitutional.

Thank you to whoever accepts this debate


(2) " "
(3)The U.S. Constitution, Article IV, section 1
(5)The U.S. Constitution, Fourteenth Amendment, section 1


I'd like to welcome my opponent to and wish him the best of luck in this debate.

To preface my opening remarks, I'd like to stress that the criteria by which the readers should judge this debate. We are debating only the constitutionality of The Federal Defense of Marriage Act (DOMA). Even if DOMA is inconclusively unfair, unprogressive, or immoral; if it is determined to be constitutional, then the vote should go to Con. Likewise, if DOMA cannot be upheld within the framework of the U.S. Constitution regardless of its other qualities, you must vote Pro. I say this not to insult the readers' intelligence, but only to gently remind them to judge according to the resolution and not towards the emotion that is sure to spring from this topic.

I offer my own summary of DOMA:

"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." (1)

I'd also like to put forth a definition of marriage:

"Marriage is an institution in which interpersonal relationships (usually intimate and sexual) are acknowledged by the state or by religious authority." (2)


1. DOMA does not violate Full Faith and Credit.

The first effect of DOMA is written in Section 2: Powers Reserved to the States. The purpose of this section can be clarified by the history that led to its drafting. In 1993, the Hawaii Supreme Court "ruled that the state's prohibition of same-sex marriages amounted to discrimination on the basis of sex." (4) The writing on the wall was clear to both proponents and opponents of homosexual marriage. If it were officially acknowledge in Hawaii, then same-sex couples could get married in Hawaii and have their marriage legally transferred to any other state via the Full faith and Credit clause.

Up to this point, states could choose how to recognize homosexual marriage, sometimes opting for a separate institution, the civil union. Now, however, they saw such liberties being threatened. Congress had two choices, simply let Full Faith and Credit compel all states to recognize same-sex marriage, or act to preserve state sovereignty over the marriage institution. DOMA is the effort towards the latter.

The surprise to many readers may be that the Full Faith and Credit clause is actually the authority by which Congress was able to enact DOMA. The complete clause states, "Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another." (5) My opponent deftly quoted only half the clause. While the clause does force states to recognize "public Acts, Records, and judicial Proceedings" of other states it also grants Congress the right to prescribe the manner in which such things are recognized. In this case, Congress uses the power of the Full Faith and Credit Clause to defer to the states the rights to choose which marriages they will accept or deny from other states. DOMA does not violate Full Faith and Credit; it is sanctioned by it.

2. DOMA does not violate Equal Protection.

The second effect of DOMA is written in Section 3: Definition of Marriage. As stated in my proposed definition of marriage, it is an institution. Like all institutions, it must be clearly defined. In the past, the words marriage, spouse, husband, and wife were all understood to refer to heterosexual union. Even today, mention that someone is married, and the listener is more likely to assume a heterosexual union. Thus, when marriage, husband, wife, and spouse were written into the constitution, no clarifications were made as to the gender of the marriage parties because they were incorporated into the understood definition of marriage in that time.

Since then, marriage is getting redefined. Even my own definition offered in this debate is gender agnostic. Again, Congress was faced with two choices. They could leave marriage open to interpretation and risk allowing the Federal court system to override State sovereignty over the matter, or they could clarify the marriage institution as heterosexual and allow the states to develop the institutions they see fit. Once again, they chose to give states authority over their marriage institutions. As a result, the Federal Government officially recognizes the heterosexual marriage institution and leaves all other marriage institutions into the hands of the states.

The Equal Protection clause states that "no state shall… deny to any person within its jurisdiction the equal protection of the laws." (6) DOMA clarifies that all past marriage laws in the books refer to the heterosexual marriage institution and not other marriage institutions. Thus, there is a distinction between types of marriage. This does not violate Equal Protection because DOMA does not deny any person the right to enter into heterosexual marriage. Furthermore, it does not prevent any state from creating other marriage institutions with the very same legal protections as heterosexual marriage. Therefore, DOMA does not violate Equal Protection.

To further clarify this point, it's important to understand that Equal Protection does not mean that all people get all protections of all laws. All laws discriminate to some degree. For example, laws protecting the specific rights of biological mothers discriminate against biological fathers and legal guardians. It would be irrational to claim that, under Equal Protection, all parents are given the same rights as biological mothers. It is perfectly constitutional to create laws that offer protections to a group based on role, be it parent, spouse, worker, etc.


My opponent is outright false when claiming that DOMA is "clearly designed to discourage homosexual relationships" and it "explicitly outlaws gay marriage." I've linked to the original text of DOMA below, and nowhere does it expressly outlaw same-sex marriage, nor is there any clear design to discourage homosexual relationships. DOMA simply defers marriage matters to the state, nothing more.

My opponent claims that separate marriage institutions fall into the separate-but-equal standard dealt with in "Brown v. Board of Education." This entire argument is based on a presupposition that homosexuality is biologically constitutional and not learned behavior. If he wishes, he may offer evidence that shows homosexuality to be as innate as skin color, in which case, Equal Protection will indeed come into play. If, however, homosexuality is a lifestyle, then the separate-but-equal case does not apply. I'll let my opponent expand on this if he so chooses.

Regarding strict scrutiny, DOMA has a very compelling government interest. When more than half the states react negatively to having to provide Full Faith and Credit to same-sex marriages in other states, Congress has a very real interest in responding. (1)


I am well aware that DOMA creates deep controversy, but it should also be recognized that State liberties are a pivotal American government construct. DOMA sets out to protect those liberties. While it presents another obstacle towards nationwide acknowledgement of same-sex marriage, in no way does DOMA violate the U.S. Constitution.

3. DOMA:
Debate Round No. 1


I thank my opponent for accepting this debate. I hope that an interesting debate follows.

I also thank my opponent for acknowledging that the criterion for this debate shall be constitutionality. It was wise of him to remind the reader of this.

My opponent was also wise to bring up the second half of the full faith and credit clause, which allows congress to "prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another." However, the power of congress is not unlimited. In supreme court case "Fauntleroy v. Lum", the Supreme Court has explicitly held that judicial proceedings "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence the said records are or shall be taken." (1). This opinion was confirmed by case Yarborough v. Yarborough (2). Section 1 of DOMA states that "'No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any ...judicial proceeding of any other State..." (3). This violates the precedents upheld in these cases.

However, even if my opponent wishes to deny the value of the Supreme Court's input, it must be noted that Congress is not justified in restricting "full faith and credit" if this restriction can lead to a violation of rights. Since Congress's decision to restrict fall faith and credit deals with the rights and equal protections of certain classes, the restriction must stand up to a certain degree of reasonable scrutiny. If it can be proved that any part or ramifications of DOMA result in the restriction of an individuals due process or equal protection, congress's ability to restrict 'full faith and credit' is, in this instance, unconstitutional.

My opponent claims that DOMA is not a violation of equal protection. Much of this claim is staked on the idea that DOMA defines marriage as between a man and a woman for the sake of clarification and practicality, rather than for the sake of discrimination. He says that since all other marriage institutions are left to the states, there is not necessarily blatant discrimination, as homosexual marriages can still be legal is a state chooses to legalize it.
Even so, because of DOMA, the federal government cannot possibly recognize any marriage that is not between a man and a woman. Even if a state chooses to recognize such a marriage, people in a gay marriage are not elegible for any benefits that come from having the federal government recognize your marriage. A study by the General Accounting Office (GAO) found that there are at least "1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges." (4). Because of DOMA, members of a gay marriage are not eligible for any of these, and they are being denied equal rights and protections under the law. Homosexuals are also being denied the right to marriage, a right that has existed since Supreme Court case "Loving v. Virginia" (5). This is a violation of the substantive Due Process and is also unconstitutional.

My opponent also claims that "This does not violate Equal Protection because DOMA does not deny any person the right to enter into heterosexual marriage." Prior to "Loving v. Virginia", it was possible for the state of Virginia not to recognize any marriage between people of mixed races. According to my opponents logic in the quoted statement, this would not violate equal protection either, as it did not deny anybody the right to enter into a marriage with their own race. The right to marriage found in "Loving v. Virginia" changed that. The same logic applies here.

My opponent goes on to say that all laws discriminate to some degree. This is true. I didn't say that it was not. However, the important question regarding this discrimination is whether is stands up to at least a reasonable level of scrutiny. It is clear that it is not reasonable to deny homosexuals their 'right to marriage' and over 1000+ benefits that comes with that right (5,4).

My opponent says that DOMA does not "expressly outlaw same-sex marriage". The key word is "expressly". By limiting the definition of 'marriage' to 'one man and one woman', DOMA bans all homosexual marriage on the federal level. My opponent also says "nor is there any clear design to discourage homosexual relationships." Here, the key word is "clear". Considering that the law denies hundreds of benefits to homosexual couples, it is logical that it will discourage the formation of homosexual couples. DOMA may defer marriage matters to the state, but that it not sufficient to guarantee substantive due process or equal protection.

My opponent asserts that Equal Protection cannot come into play for homosexuals because homosexuality is not biological. Firstly, it must be said that there are numerous studies that have proven biological and anatomical differences between hetero and homosexuals. Most notable are differences in Brain structure and size, as well as differences in the hypothalmus gland, which is rather responsible for sexuality. I've listed various sources to confirm this (6). This is also evidence that homosexuality exists in nature. Scientists have discovered that rams tend to be gay. The proportion of gay rams is close to the proportion of gay humans. Gay rams have brain differences similar to the ones found in humans (7). Given the nature of animals, they do not make "lifestyle choices". Even if homosexuality is not caused by biological factors, the other reputable theory as to the cause of homosexuality are various pyschological stimuli and trauma at a young age (this theory has less evidence than the biology theory). If this is indeed the cause, then homosexuality is still not a "lifestyle" choice (8). The point is, homosexuality is not a voluntary "lifestyle" choice.

Regardless, equal protection of the law does not end at "life style choices". Protected and suspect classes are not required to be biological either. Religion is a protected class. Religion is also a lifestyle choice. Exclusion of homosexuals from equal protection is not justified by "it's a life style choice".

My opponent's scrutiny rationale is not sufficient. Public opinion or even state opinion is not sufficient case for discrimination under a scrutiny standard. If it was, the Supreme Court would not make any particularly controversial decisions. However, it does so all the time. The aforementioned "Lawrence v. Texas" was unpopular, and many states reacted negatively towards it. Another famously unpopular case is "Texas v. Johnson", which allows flag-burning although 90% of the populace and nearly every state would like to ban it (9).

I would like to take this time to thank my opponent again for agreeing to debate this very interesting topic. I have been enjoying this debate immensly. I would like to apologize for my rushed and chaotic organization towards the end of this rebuttal, but I am running out of space, energy, and daytime. Thank you.




I must extend much appreciation to my opponent as he is both a challenging debater and remarkably well written, which is made all the more impressive given his age.

In order to keep the scope of this debate on target, I will once again remind the readers that we are arguing for or against the constitutionality of DOMA. All other discussion is simply evidence for or against this main goal. Thus far, my opponent cites two offended constitutional clauses: Full Faith and Credit and Equal Protection. My only goal and burden is to show that these two clauses (as well as any others presented by my opponent) are not violated.

1. DOMA does not violate Full Faith and Credit

While my opponent acknowledges Congress' constitutional power to prescribe how Full Faith and Credit is to be administered between states, he adds the caveat that Congress' power is not unlimited. Indeed, this is absolutely true. Congress' power is limited by the U.S. Constitution. Since the Full Faith and Credit clauses grants Congress power to determine how Full Faith and Credit is administered, it stands to reason Congress' use of this power is constitutional if and only if it does not violate other clauses such as Equal Protection. Therefore, DOMA does not violate Full Faith and Credit.

2. DOMA does not violate Equal Protection

With Full Faith and Credit eliminated from the issue, we can turn our attention entirely on the issue of Equal Protection. My opponent touches on several points which I will rebut.

a) First, my opponent claims that the denial of 1,138 federal provisions for married couples is a violate of equal rights. Yet, DOMA does not prevent any person in America from receiving these rights. Every state has the power to provide the same legal benefits to both heterosexual and homosexual unions. And though DOMA federally defines marriage to mean heterosexual marriage, the federal government is still permitted to add all the same benefits to any other marital union it wishes.

b) In "Loving v. Virginia," it was determined that denying anyone wishing to enter into the marriage institution as it was then defined (i.e., heterosexual) was unconstitutional. Since then, no one is denied the protections of this institution as long as the accept the criteria that defines it, i.e., heterosexual union.

c) My opponent says, "By limiting the definition of 'marriage' to 'one man and one woman', DOMA bans all homosexual marriage on the federal level." This is absolutely false. DOMA does not, in any way whatsoever, prevent homosexual marriages in states that legalize them nor does it prevent Congress from creating any number of homosexual marriage protections, even 1,138 of them. DOMA certainly is a hurdle to homosexual marriage advocates, but a "hurdle" does not equal "unconstitutional."

d) I will concede to my opponent the argument that biological or learned homosexuality is irrelevant to the debate. In either case, Equal Protection is not violated. Whether one cannot help being homosexual or has chosen it willingly, they are still fully at liberty to enter into the heterosexual marriage institution.

My rebuttals are certain to seem repetitive, but that's because the reasoning behind my position is very simple. Just because someone wants the same protections as someone else does not automatically mean a violation of Equal Protection has occurred. I may desperately want the same protections of certain religions, nonprofit organizations, or minorities, but it does not follow that my denial of such protections is unconstitutional. Until it is conclusively determined that one has a civil right to a particular institution can Equal Protection be invoked.

Consider the hypothetical scenario in which Congress immediately adds the same 1,138 protections to a second institution called civil union. In such a case, both heterosexual and homosexual unions have equal federal protection. I submit that the scenario is constitutional, and DOMA therefore is also constitutional as it fully allows such a scenario to occur. At best, my opponent has argued that this is equivalent to "separate-but-equal." In Brown v. Board of Education, it was determined that everyone has a civil right to public education with equal protection. Separate facilities by their nature were determined to be unequal.

However, marriage does not fall into this same conflict. Marriage is a construct, a definition. No one has a civil right to be labeled identically to someone else. That is to say, if the government chooses to recognize a variety of marital institutions, there is no inalienable right to insist they be lumped into a single institution. And if my opponent insists that all people have a civil right to a singular, universal marital institution called marriage, then he essentially claims that people have a civil right to define marriage. There is no precedent in which anyone is entitled to such protections.

In summary, DOMA does not prevent the same rights granted to heterosexual marriage to be applied to homosexual marriage. It does not explicitly or implicitly ban or outlaw homosexual marriage. It simply defers the recognition of the institution to the states. 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. No matter how non-progressive DOMA may be, it does not logically follow that it unconstitutional.
Debate Round No. 2


I thank my opponent for his response and his inspiring conduct in this debate. It has certainly been worth the time.

I am glad to see that my opponent and I have reached a mutual understanding of full faith and credit. He has agreed that Congress's power to regulate full faith and credit in this situtation is dependent upon whether their doing so involves the violation of another constitutional clause. By proving that DOMA violates equal protection, I will, in turn, also prove that it violates full faith and credit.

My opponent claims that DOMA does not violate equal protection because it does not explicitly prevent or outlaw the federal government or the states from granting the benefits that accompany marriage to other forms of marital unions. To strengthen his case, he provides a hypothetical scenario "in which Congress immediately adds the same 1,138 protections to a second institution called civil union." My opponent believes that since such a scenario has the potential to exist, DOMA is not unconstitutional. This argument, while highly interesting, fails on multiple levels.

Firstly, my opponent's argument fails from the realistic standpoint. It is not simply enough to analyze whether the wording of a law is unconstitutional, it is also necessary to analyze the real standards of society upon which a law is being applied. Perhaps it is possible that congress creates the institution of civil union and proceeds to give it over 1,000 rights given to marriages, but it is certainly not probable, likely, or even feasible. It is safe to assume that congress has no intention of creating civil unions in the near or long term future, and that it had no such intentions when it created DOMA. The only way to make DOMA constitutional would be to force congress to create the hypothetical situtation created by my opponent. Given the impracticality and near impossibility of forcing congress to do so, it is much more logical not to try and make DOMA constitutional and simply strike it down.

For an example of a law that may have seemed constitutional on paper but was obviously not constitutional in practice, one can look to the poll tax. Prior to the passage of the twenty-fourth amendment, the poll tax was constitutional, as upheld in case "Breedlove v. Suttles" (1). The poll tax did not seems to explicitly ban any person from voting. However, in practice, the poll tax was clearly designed to discriminate against minorities. This was ended by the supreme court case "Harper v. Virginia Board of Elections" (on the grounds of equal protection) and the twenty-fourth amendment (2,3).

However, even if we choose to accept my opponent's point (for the sake of argument), it still violates equal protection. My opponent asserts that marriage is merely a construct, a definition. He also stresses the point that not all laws can always treat all people equally. Both of these are true. However, the pertinent question regarding unequal treatment is whether such discriminations and distinctions serve some form of compelling state interest. If we are to construct an institution known as 'marriage', and then we are to reserve it for heterosexual couples, we must find a compelling interest with which to back this reservation of rights. The fact of the matter is that there is no suffieciently compelling interest to stand up to scrutiny or rational review. Therefore, creating a distinction between two nearly identical institutions creates a distinction solely for the purpose of discriminating.

In round one, my opponent attempted to offer 'the will of the states' as a compelling state interest. This is not a compelling interest. If my opponent should bring it up again, please look to round two for my rebuttal, which I have already written and my opponent has not acknowledged.

The only other argument for compelling interest that I have heard before is that marriage is solely for the purpose of procreation. This argument is illogical. If it was true, it ought not to be legal for infertile people or people who do not desire kids to get married. Moreover, allowing homosexuals to enter the institution of marriage does not hamper or retard the interests of hetersexual procreation. In fact, it increases the ability of homosexuals to adopt and raise kids of their own, which helps raise the next generation of citizens, the primary purpose of procreation. In the event that my opponent brings up this argument (he has not), I have already rebutted it.

My opponent may also attempt to bring up the point that marriage is defined as between a man and a woman, and since marriage is a construct, there is not any discrimination there. I have already touched on this above, but just to emphasize another point, I would like to quote Massachussets Supreme Court Justice Greany "[t]o define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide." (4). Essentially, considering homosexual marriage by how it has always been defined is circular and redundant. Also, my opponent has been kind enough to provide a definition of marriage that is agnostic to sexual orientation, so I doubt that he will bring this point up.

I would like to thank my opponent once more for accepting this debate. He has put up excellent points, and to be honest, I'm afraid he'll bring up some devastating new point in his final rebuttal, but I won't have time to refute it because he has the last word. Oh well, such is life. I would also like to thank my opponent for his exceptional civilty and conduct. The world would be a much nicer place if everyone was as well-mannered as my opponent.

I apologize to my opponent if he is annoyed by my attempts to anticipate his final rebuttal. He may not make the points that I think that he will make at all, but I felt compelled to try and anticipate his points anyway. After all, this is my last chance to make a point. On a personal note, I have always been irked by not having the last say in things.

In conclusion, I have demonstrated that DOMA stands in violation of equal rights, and does not stand up to sufficient scrutiny to uphold such violations. It is therefore unconstituional, and it is necessary to vote PRO.

Thank you




I appreciate my opponent's concern that he may have annoyed me with his anticipatory rebuttals, and he need not worry. As a matter of fact, it is sort of an unspoken rule that the final debater never bring up new arguments. The final debater may summarize his/her position and offer final rebuttals, but adding new arguments that cannot be addressed generally loses one the conduct vote. That being said, I will indicate below where I stand with regards to all his preemptive rebuttals.

My opponent criticizes my position as not being practical, saying that "it is safe to assume that congress has no intention of creating civil unions in the near or long term future." First of all, predicting the future does not prove his case one way or the other. However, even if this were likely to be the case, as he suggests, it does not make DOMA unconstitutional. The conjecture on Congress' future actions has no bearing on the constitutionality of anything.

To strengthen this argument, he appeals to "Breedlove v. Suttles." This is not a direct analogy. My opponent equates the attempt to suppress one's right to vote with the attempt to suppress one's right to marry someone of the same sex. This begs the question since he presupposes homosexual union to be an inalienable right. Discrimination itself is not unconstitutional, as we discussed earlier. In the case of "Breedlove v. Suttles," however, discrimination was causing a constitutional violation of voting rights. DOMA does not fall into this category. DOMA clarifies the current marriage laws to refer to the heterosexual marriage institution, as it had been implicitly understood for generations. This does not permanently prevent homosexual marriage, regardless if homosexual marriage were considered a right.

My opponent goes on to assert that without compelling state interest, separate but equal institutions violate equal protection since they are separate for the sole purpose of discrimination. I've already argued this point. More than half the states are opposed to homosexual marriage, so Congress' actions were not done for the "sole purpose to discriminate." Congress chose to discriminate in response to state pressure. Congress' interest, in this matter, was sufficiently compelling. My opponent's response to this reason is that state opinion, if allowed to be so influential, would prevent the Supreme Court from making any controversial decisions. This is a straw man defense. First of all, I logically linked state opinion with Congress' actions, and he rebuts by hypothetically linking state opinion to Supreme Court ineffectiveness. He never really rebutted my position here. His citing of controversial Supreme Court decisions has nothing to do with the legitimate motives of Congress regarding DOMA. There is little else more compelling to Congress than more than 50% of the states demanding the power to self-govern the marriage institution. This is further supported by the fact that a Democratic President willing to stand up for homosexual rights in the armed forces quickly signed off on the act.

In an attempt to anticipate possible new arguments I would bring up, my opponent refutes the argument that marriage is defined by the act of procreation. This is not an argument I intended to offer. I agree with my opponent that it is a weak argument, but would further add that it has nothing to do at all with the constitutionality of DOMA.

My opponent's second anticipatory rebuttal was against an argument that marriage, being defined as a constructed institution between a man and a woman, cannot by definition be discriminatory. I would not have made this argument primarily because it would contradict my earlier arguments. I argue that marriage is a construct, and as such, is very much discriminatory. That's the whole point. The Girl Scouts discriminate against boys because the organization defined itself as such. Marriage, as I mentioned before, has been discriminating against homosexuality for eons because of its very definition--until recently--has always assumed heterosexual union. My opponent says, "Considering homosexual marriage by how it has always been defined is circular and redundant." This is but a truism, not really adding or detracting from the resolution. Congress being "redundant" or "circular" is neither here nor there when determining whether or not DOMA is constitutional. The only criterion is whether or not DOMA violates the U.S. Constitution itself.

To close, I will summarize my position succinctly. DOMA is constitutional. It does not violate Full Faith and Credit, as my opponent agrees, because it is sanctioned by Full Faith and Credit. It does not violate Equal Protection for several reasons: Congress had compelling state interest to make the marriage distinction, it does not prevent the same rights granted to homosexual marriage at either the federal or state levels, and it does not deny heterosexual marriage to anyone. This is all that is necessary to negate the resolution. DOMA might be old fashioned, non-progressive, or downright mean, but it does not violate the U.S. Constitution.

I would like to thank my opponent for this challenging debate topic. Four out of the five last debates I participated involved forfeited rounds. It is a pleasure to debate with someone that shows up and brings his "A" game.

Thank you.
Debate Round No. 3
9 comments have been posted on this debate. Showing 1 through 9 records.
Posted by Mr_smith 9 years ago
I don't think that the institution of civil marriage itself is unconstitutional (unless its discriminatory). But that's another fish for another day, and I'm not ready to go there quite yet.

As to those who keep bringing up religion: The 'wall of separation' principle excludes religion from any argument over constitutionality. Therefore, it cannot be included in an argument concerning constitutionality.
Posted by dtclark2188 9 years ago
Very well written Pro! Just out of curiosity, do you think that the institution of marriage as it stands is unconstitutional? In other words, does it violate both the free exercise and "No law of Congress" clause of the First Amendment? If you disagree, then let me know, and I would be happy to debate that point with you.
Posted by PervRat 9 years ago
I guess I will bite the bullet if no one else accepts the challenge in 5 days or so, but really someone who believes in that side (or if not, at least has more experience than I!) should take it up to keep it interesting.
Posted by InfraRedEd 9 years ago
InfraRedEd Well this is certainly no cream puff. Why not break it into two debates? A marriage can be valid in one state and not in another; that is the present situation anyway and does not violate the Constitution. But I am certainly not going to argue the con on the second clause.

Under Robert's Rules of Order if even one person wants a question split it is split.
Posted by PervRat 9 years ago
I pondered taking the "con" side though I support the "pro" side in respect to my h.s. debate teacher who challenged me to take a side in a debate and argue it to the best of my ability though I disagree with that side myself.

Unfortunately, I am at a loss to conceive of a good counter-argument considering the narrow restriction of the debate. Whether something is or is not constitutional is not sufficiently subjective to allow for much wriggle room, and assuming the constitution quotes are accurate (I haven't checked), then I can conceive of no valid argument.
Posted by rougeagent21 9 years ago
Hmm, thats kind of a cheap card there. Whoever accepts this debate probably will bring that up just so you know.
Posted by Alex 9 years ago
You don't want religion brought in this debate?

Marriage is religious, you can't not bring it up.

Posted by Mr_smith 9 years ago
I'll refute you if you accept the debate.
Posted by masterzanzibar 9 years ago
Lawrence V. Texas = ridiculous.
equal protection is justifiable and agreeable
but sexual privacy free from government instrusion, how does that not constitutionalize beastiality, incest, polygamy ect?
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