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Sunday, March 11, 2012

Banning Same sex marriage: Unconstitutional?

Gay Marriage advocates claims:

--> Violates The Equal Protection Clause

  •  This claims it is discriminatory therefore it is against the equal protection clause. This is first assuming marriage is a right. [1] Lets then for fun claim it is a right. If marriage is defined as a man and a woman then there is no discrimination as Same Sex "Marriage" doesn't exist. [1] So if it is a right then there is no discrimination if you word it correctly. 
  •  Now lets assume it isn't a right. Then not only do heterosexuals still deserve it as this is the states interest, [2] but even if marriage is defined as anything there would be no discrimination if it was banned. 
  •  Current US laws show marriage as between a man and a woman under federal law (they do not recognize gays). [3] As it is defined as between a man and a woman there is no discrimination even if marriage is a right as there is no same sex marriage. [3] Therefore point 1 is correct, and if point 2 is then ok too. In both scenarios it is constitutional. 
Second claim:

--> Due process clause 

  • "[no State shall] deny to any person within its jurisdiction the equal protection of the laws."
  • It can only deprive them of liberty if a fundamental right is being deprived. Lets go through scenarios again.
  • It is a right, but there is still no Same Sex "marriage", therefore there is no deprivation of rights. [1]
  • It isn't a right, therefore any ban does not infringe on liberty. 
Banning SSM is constitutional.



[1] "One Man, One Woman: Defending Traditional Marriage" By Tim Hsiao, Florida State University.
[2] William C. Duncan, "The State Interests in Marriage" Ave Maria Law Review (2004) 153 (PDF)
[3] "Same Sex marriage: Should it be legalized?" By Alexander Adams, Sandia Preparatory school

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