Is it constitutional to ban gay marriage?
Yes, it is constitutional.
Side Score: 14
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No, it is unconstitutional.
Side Score: 13
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Just to play devil's advocate (a game I am not good at)... There is nothing in our constitution that says its wrong to ban gay marriage. In fact there is nothing in our constitution that gives the federal government any power over marriage laws. Thus, the tenth amendment stands as marriage and the definition of marriage consists of powers reserved for the state. Each state must choose its laws regarding gay marriage and any other type of marriage. Side: Yes, it is constitutional.
In fact there is nothing in our constitution that gives the federal government any power over marriage laws. This is superseded by the federal government recognizing heterosexual marriage. Since the federal government is involved the federal government gets to decide. Side: No, it is unconstitutional.
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There are parts of the Constitution that do make it wrong, however. When the government became involved in marriage, they made it under the jurisdiction of our courts. Our courts then ruled it to be a civil right, which made it subject to the Constitution (14th), and so on. The 10th Amendment has been irrelevant to the conversation of marriage since the federal government decided to give it federal benefits and the Supreme Court made it right. Side: No, it is unconstitutional.
It IS unconstitutional, since it derails their pursuit of happiness and freedom. However, I am pretty sure if the Founding Fathers had thought of this issue, or been asked about Gay Marriage, they would have indeed banned it. But they did not. There is nothing in the Constitution banning it, and also there are passages that seem to encourage people marrying whomever they wish. So technically a ban on Gay marriage IS unconstitutional. Having said that, I personally am against it. If that makes me a homophobe or a bigot, so be it. I will take the rap. Side: Yes, it is constitutional.
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"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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." At the time the equal protection clause was written it was to provide African Americans citizenship and equal protection under the law. Thus it can be concluded that the framers of this amendment did not intend for it to expand to limit the powers of the states, but rather protect those who may be discriminated base on the issue of race. Even still, the amendment does not specify what such privileges and immunties citizens are entitled to. This is because specification is to be made by the individual states. This means that gay couples are in deed entitled to form unions, but only as they are defined by the state. Side: Yes, it is constitutional.
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Let's start with the biggest issue regarding original intent: There was no singular intent. You seem to be under the impression that those who passed these amendments had a universal intent in mind, but as the Federalist/Anti-Federalist debate over the intent of the Amendments shows, that simply is not the case. Which means you still have to personally decide which interpretation to use, which undermines (if not nullifies) any and all legitimacy an original intent argument would have. Additionally, the very concept of adhering strictly to original intent is undermined by the very amendment process itself. The Constitution was a document made to last and be relevant for a long time, which is why the entire concept of being able to change it was created. Between that and the entire sum of Supreme Court precedent, we can see that "original intent" is, for all intents and purposes, irrelevant. So while the 14th Amendment might have been originally intended to give said rights to African Americans, it in effect gave said rights to all American citizens. As for the "Federal vs States" argument, that goes right back to the Federalist/Anti-Federalist debate that demonstrates no singular original intent. Lastly regarding the specific privileges and immunities, that comes down to precedent. Marriage was ruled a civil right in Loving v. Virginia, which is what made it subject to the 14th Amendment. Before that you were right, however. But when marriage was ruled a civil right it became subject to constitutional protections, as the Supreme Court correctly ruled on in over 10 different cases. Side: No, it is unconstitutional.
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Furthermore if acknowledge the right to marry the same sex as a citizen's right, then what about citizen's under the age of eighteen who would like to marry someone well over their age? Does this mean that our constitution respects the union of a nine year old and an adult? After all children are also natural born citizens of the U.S. and they are to have equal protection under the law. Clearly we must consider the intentions of the framers when looking at this amendment. Side: Yes, it is constitutional.
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Furthermore if acknowledge the right to marry the same sex as a citizen's right, then what about citizen's under the age of eighteen who would like to marry someone well over their age? They, unlike adults, have no legal right to marry, being under the age of consent (for both contracts like marriage, or sex). So no, our Constitution does not respect pedophilia, and no, children do not have equal protection under the law. Clearly we must consider the intentions of the framers when looking at this amendment. They had no singular intent, so that serves no purpose. Side: No, it is unconstitutional.
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