Same-Sex Marriage Should Be Legal in the United States

I want to begin by saying how delighted I am to be debating Contradiction on this very important social issue. It's good to be able to argue with someone who is so philosophically inclined. For my part of the debate, I'll be arguing that same-sex marriage should be legal in the United States. Accordingly, in this debate I'm going to defend two basic contentions. First, there are no legally tenable reasons to ban same-sex marriage. And secondly, there are good reasons to think that same-sex marriage should be legal. I'll leave it up to my opponent to make the case against same-sex marriage. So then let us turn to my second contention that there are good reasons to think that same-sex marriage should be legal. Let me briefly outline some of these reasons. C1: The right to marriage is a fundamental right. As far as the United States Supreme Court is concerned, the right to marriage is a fundamental right. Theodore Olson, a world-renowned attorney and former Solicitor General of the United Sates, has pointed out that since 1888 the United States Supreme Court has ruled 14 times that the right to marriage is a fundamental right.[1] Consider, for example, Turner v. Safley, 482 US 78, 95 (1987) (“[T]he decision to marry is a fundamental right” and marriage is an “expression[] of emotional support and public commitment.”); Loving v. Virginia, 388 US 1, 12 (1967) (The “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Cleveland Board of Education v. LaFleur, 414 US 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”)[2] In light of this legal precedent indicating that marriage is a fundamental right, it is not reasonable to assume otherwise. C2: Gay people qualify as a suspect class. Laws that discriminate on the basis of sexual orientation must be subject to strict scrutiny because gay people qualify as a suspect class. According to the Attorney General of the United States Eric Holder, "[The Supreme Court has] rendered a number of decisions that set forth the criteria that[] [detail] whether heightened scrutiny applies [i.e., when a group can be considered a suspect class]: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).[3] In order to demonstrate that gays and lesbians are a suspect class, I will, once again, defer to the legal expertise of Attorney General Holder. 1. First, it is well established that gays and lesbians have been the victims of a longstanding history of purposeful discrimination, both by private and governmental agencies. Of course, this discrimination has often been based on prejudice and stereotypes that still have societal ramifications today. In fact, many states have victimized and demeaned gays by criminalizing their private sexual behavior. Lawrence v. Texas, 539 U.S. 558, 578 (2003).[4]2. Second, there is a strong scientific consensus that sexual orientation is a characteristic that is immutable. In his book Sex and Reason, Richard A. Posner, an eminent legal theorist from the University of Chicago Law School, has argued that scientific evidence indicates that sexual orientation can be considered an immutable characteristic for the purposes of law.[5-6] For example, there is a considerable amount of scientific evidence to suggest that biological, genetic and hormonal factors play a significant role in shaping a person's sexuality.[7] According to the American Psychological Association, "Although we can choose whether to act on our feelings, psychologists do not consider sexual orientation to be a conscious choice that can be voluntarily changed."[8]3. Third, the enactment of laws such as those under consideration in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the lasting rejection of gays and lesbians from serving in the military, and the lack of federal protection for employment discrimination based on sexual orientation show that gays and lesbians lack significant political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445.[9]4. Finally, there are very good reasons to postulate that sexual orientation "bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Indeed, recent developments in legislation (including the repeal of DADT), in case law (e.g., the Supreme Court's rulings on Lawrence and Romer) and a growing body of sociological and scientific evidence all make it clear that sexual orientation is not a characteristic relevant to legitimate policy objectives.[10] Because the fundamental right to marriage is being subverted for a suspect class by same-sex marriage bans, the strict scrutiny standard of judicial review must be applied -- i.e., it must be demonstrated that these laws are narrowly tailored to a compelling government interest. Carey v. Population Services International, 431 US 678, 686 (1977).[11] Unless it can be shown that preventing same-sex marriage furthers a compelling government interest, laws that eliminate same-sex marriage must be presumed to be unconstitutional.C3: Same-sex marriage bans violate the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause of the 14th amendment requires that "[no State shall] deny to any person within its jurisdiction the equal protection of the laws."[12] Bans on same-sex marriage are in violation of the Equal Protection Clause for at least two different reasons. First, they deny gay men and women the ability to marry the person of their choice, whereas heterosexual men and women are not bound by these restrictions. Second, these bans single out and harm a suspect class by preventing only gays and lesbians, not heterosexuals, from being able to marry. Because bans on same-sex marriage unfairly disadvantage gay people and fail to treat them equally, they are in violation of the Equal Protection Clause. C4: Same-sex marriage bans violate the Due Process Clause of the Fourteenth Amendment.The Due Process Clause of the 14th amendment requires that "[no State shall] deprive any person of life, liberty, or property, without due process of law."[13] Bans on same-sex marriage violate the Due Process Clause for at least two different reasons. First, they prevent gay citizens from having the liberty to marry the person of their choice. Second, an individual's choice of a marriage partner is protected by the 14th amendment from the state's subversion of that choice. For these reasons, bans on same-sex marriage are in violation of the Due Process Clause by impinging on a liberty that is deemed to be fundamental. | Conclusion | In conclusion, the right to marriage is a fundamental right that is being deprived from a suspect class of individuals. Given this analysis, any law that deprives gay people of their fundamental right to marry must be presumed to be unconstitutional unless it can be established that the law is narrowly tailored to a compelling government interest. Thus, in the absence of any compelling legal arguments for state-sanctioned marital discrimination against gay individuals, same-sex marriage should be legal in the United States. Sources: http://tinyurl.com...