This is a fascinating argument. I have to give you points for creativity. Can you give me another example of a law that I am legally required to abide by that predates the Constitution, but is not contained therein?
Your thesis that ‘gay marriage is not contrary to the constitution requires evidence that the founders rejected the Common Law definition of marriage. I have plenty of information that shows this is just not true.
It's likely they did accept the definition, however since they left it out of the Constitution entirely, it looks like it falls under many of the vast powers under the 9th and 10th Amendment.
DOMA explicitly cites the FF+C clause as the requirement for a uniform standard across the US with respect to the definition of marriage. States are permitted to set things like age laws, etc, but they cannot change the definition.
Bingo. It sets the standard by which the FedGov itself will recognize marriage, and what definition the various states will be required to recognize with respect to each other. It DOES NOT make requirements on the individual states on how they recognize a marital contract within. So yes, they can change the definition, it just may not be recognized by other states or the federal government itself (which really only applies to tax and immigration purposes, since, as I stated before, it is largely a state matter). But those can change with the power balance, so even if you get your standards in place, they will likely change election to election. Once again, federal control gets you next to nothing.
If every state has different marriage laws, and each state fails to recognise marriage in every other state - then there really is no marriage whatsoever.
Oh really? So we need state permission and endorsement for marriage? Wow, this is conservatism?
There's no marriage unless Daddy Government says so?
People are free to call their relationships whatever they want, even ‘marriage’, but it doesn't change the legal requirements.
There you go. Now you're onto something.
I couldn't give a rat's ass what the Federal Government says about marriage, or any other politician or bureaucrat. If we had a true Constitutional Republic, it wouldn't matter whether you were married or not as the laws, regulations, and statutes in this country would be limited; exemptions, tax credits, subsidies, and other marriage benefits wouldn't be needed since the laws that they exempt people from wouldn't exist.
The best idea is to keep the government as far away from marriage as possible. The ideal role would extend to honoring a contract and setting terms for dissolving it, and that's it.
“This is a fascinating argument. I have to give you points for creativity. Can you give me another example of a law that I am legally required to abide by that predates the Constitution, but is not contained therein?”
That’s a good question. Contracts and property law, stuff like that. We’re talking some of the more basic principles that are usually taken for granted because ‘they’ve always been there’. Well, they aren’t ‘always there’. Consanginuity laws, that’s another.
“It’s likely they did accept the definition, however since they left it out of the Constitution entirely, it looks like it falls under many of the vast powers under the 9th and 10th Amendment.”
Then why didn’t Reynolds make that argument? Reynolds didn’t make that argument. Reynolds goes back and explicitly cites the English Common law, establishing the definition of marriage within the United States, and then goes and makes the jurisdictional argument, that the United States federal government has an obligation to protect the Common law. It then goes and explicitly negates the argument that Utah can set up their own law to change the definition of marriage.
See, that’s the thing. To understand how law was understood to work back then - you look at the arguments! You look at what Reynolds said, and why - the statutes that Reynolds cites, the previous examples, and all of them are from the English common law. Every single one. That to me indicates that they believed this was the basis of this law in the United States, and that they believed these arguments were compelling.
“It DOES NOT make requirements on the individual states on how they recognize a marital contract within.”
Within the definition, it does. It explicitly bars changes in that definition away from one man and one woman, barring both polygamy (as in Reynolds), and gay marriage. You’re right that states do issue marriage licenses, and the federal government recognizes them insofar as the licenses meet the requirements of the law. If they fall outside - then they aren’t legally recognized marriages and no entity is required to treat them as such. States may attempt to impose these requirements on people as we are seeing now, but they are illegal and contrary to federal law.
“So yes, they can change the definition, it just may not be recognized by other states or the federal government itself”
Which means that it’s not a legal marriage. If it were a legal marriage, everyone within the US would be bound to recognise it per the FF+C clause.
“Once again, federal control gets you next to nothing.”
Why is it relevant, “what the law gets me?” What is relevant is what the law is. And the federal government has the authority to enforce the law - they do not have the authority to redefine the law. Nor do the states. Nor does anyone. That’s the point. Any redefinition is contrary to the Common Law, and unless you want to go away from that model (IE, sharia), it’s a non-starter.
This is why I state that progressives have the exact same goal as sharia, to remove the underpinnings of American jurisprudence. The sooner conservatives recognise this, the better off we will be in understanding what their goals are and why. The left sees this stuff quite well- they also believe that nobody else does, which is why they can push it with impunity and get what they want. And they are mostly correct.
“Oh really? So we need state permission and endorsement for marriage? Wow, this is conservatism?”
Yes, you do. If all are recognised than none, effectively are. There needs to be a federal standard of marriage.
“There’s no marriage unless Daddy Government says so?”
No, there isn’t. Again - this goes back to the crux of it. Marriage is a public good. Always has been. It’s not a private affair. You don’t get married in private - legally it requires witnesses. It requires a public record and anyone can find out whether or not you were married, to whom and to when. There is not ‘expectation of privacy’ with respect to marriage - it just doesn’t work that way.
“I couldn’t give a rat’s ass what the Federal Government says about marriage”
The law cares. Are conservatives against respect for the law?
“If we had a true Constitutional Republic, it wouldn’t matter whether you were married”
It should matter, otherwise, what purpose is there to getting married? The law should recognise marriage, and the laws are there for a reason.
“The best idea is to keep the government as far away from marriage as possible. The ideal role would extend to honoring a contract and setting terms for dissolving it, and that’s it.”
But you’re insisting that the government step in to enforce a contract when it is convenient to you, and leave you alone when it does not. If you expect the government to enforce the marriage contract with respect to divorce laws, then you have no argument anymore.
Again, you are free to call your relationships whatever you want - you can argue you are married. You are free to set up whatever contract you desire privately - but you cannot insist on state enforcement of your private contract wrt marriage along with the divorce laws.