The Federal Defense of Marriage Act is Unconstitutional

I'd like to welcome my opponent to Debate.org 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) OPENING REMARKS: 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. REBUTTALS: 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) CONCLUSION: 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. SOURCES: 1. http://www.lectlaw.com... 2. http://en.wikipedia.org... 3. DOMA: http://en.wikisource.org.... 4. http://family.findlaw.com... 5. http://en.wikipedia.org... 6. http://en.wikipedia.org...