The Constitutional Debate On Legalized Homosexual Marriage In The United States

Recently,the American society tends to tolerate and protect homosexual marriage.Cases related to homosexual marriage and played out by the Supreme Court of the United States tend to make the homosexual marriage legal.And at the same time,there are many constitutional controversies in those cases.This thesis tries to analyze the constitutional controversy of homosexual marriage cases played out by the Supreme Court of the United States from three aspects.These three aspects are the role of the Supreme Court of the United States in the public policy,the choice of staring decisis or overruling the precedent and the constitutional clause's binding effect for the judicial judgment.And this thesis would contain 5 parts.The first chapter tells us the basic background of homosexual marriage.There are three kinds of philosophical foundations of homosexual marriage,which include natural law,liberal constitutionalism and the feminist theory.In the opinion of the natural law,sodomy and the homosexual marriage are unethical,and the liberal constitutionalism turns to Due Process Clause and Equal Protection Clause for help to support and protect the homosexual marriage.However,the feminist theory tends to object the marriage system and thinks it can not protect all families,including sisters families.Chapter 2 mainly illustrates some important cases related to homosexual marriage,which conclude Bowers v.Hardwick,Lawrence v.Texas,Baker v.Nelson,U.S.v.Windsor and Obergefell v.Hodges.All of them are played out by the Supreme Court of the United States.Although Bowers v.Hardwick and Lawrence v.Texas are mainly about homosexual sex,they are also related to homosexual marriage.Baker v.Nelson,U.S.v.Windsor and Obergefell v.Hodges are cases related to homosexual marriage.In this chapter,I will introduce the details of the case and ratio decidendi.And we can find that with the development of the judicial practice,the standpoint of the Supreme Court of the United States has changed from seeing the sodomy as a kind of crime to decriminalization and then turns into legalization.Chapter 3 mainly tells us the role of the Supreme Court of the United States in the public policy.In this chapter,the constitutional controversy of whether the court invades the democratic politics inObergefell v.Hodges would be introduced,and then judicial activism and judicial minimalism,and finally the boundary of democratic politics and judical judgment would be found based on the comparison between Obergefell v.Hodges and Brown v.Board of Education.Chapter 4 mainly concentrates on the judicial choice of staring decisis or overruling the precedent.Usually,staring decisis is the judicial principle in the United States while overruling the precedent is an exception.When can a court overrule the precedent?What is the legitimacy of overruling the precedent?Complying with public wills or in according to constitution?Overruling the precedent in according to constitution would make it more legal and reasonable.In the last chapter,the constitutional clause's binding effect for the judicial judgment is the main topic.This chapter mainly tells us the constitutional controversy between the majority opinion and the dissenting opinion that are related to the constitutional clause,specifically,the Due Process Clause and the Equal Protection Clause.