For instance, states determine unique ages for when people are old enough to marry. States also determine residency lengths of time prior to marriage, and states determine divorce settlements.
If marriage was federal, then the federal government would be setting uniform standards for all of the above, meaning that the age of consent would no longer differ between states, for example.
Yet the federal government does not set the age of consent for marriage...so the federal government does not see marriage as a federal right or privilege.
Thus, Boies and Olson are, respectfully, wrong.
Marriage is a state matter, not a federal one.
It gets messier when the Federal government recognizes these things called “marriage.” The IRS will not bless a live-in relationship as a marriage if a state does not. (And how do people in D.C. get married, anyhow? Do they have to look to Maryland or Virginia law?)
Correct.
Reynolds v. United States, 1878.
“They are wrong because they are treating marriage as a federal right, even though marriage has always been a state-controlled privilege.”
I think you’ve misinterpreted their position. They are arguing that the same Constitutional privacy right that the Supreme Court has earlier found to govern the freedom to choose a marital partner of a different race is applicable to gays as well.
“The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public’s attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th’s search and seizure limits, and the 5th’s self-incrimination limit.” http://www.usconstitution.net/constnot.html#privacy
While the Bill of Rights (first 10 amendments) originally applied only to Federal government, the Supreme Court has gradually extended these rights to also apply to the states. Thus, any right to privacy found in the first 10 amendments would limit state action as well as federal action. This is the underpinning for their claim that states are not permitted to erect barriers to gay marriage.