Resolved: The US Constitution requires that same-sex couples be given the legal right to marry.

Hi Beginner, thank you for accepting my challenge. I hope we can have a fun and productive debate. I look forward to your response! 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. http://caselaw.lp.findlaw.com... http://legal-dictionary.thefreedictionary.com... http://en.wikipedia.org... http://law2.umkc.edu... http://www.foxnews.com...