Don't know if I answered this before TheProgressivePatriotDid you bother to read # 467 before writing this drivel? I stated that the issue is NOT whether or not marriage is a right in and of itself. I will add that while marriage is not mentioned in the Constitution, the courts, on numerous occasions have in fact ruled that it is a right. That is what is called case law or binding precedent , which carries the same force of law.
14 Supreme Court Cases: Marriage is a Fundamental Right | American Foundation for Equal Rights
Again, the issue is equal protection under the law and due process as provided for in the 14th Amendment. While marriage is generally a state issue, discrimination is most certainly a federal issue and states do not have absolute authority over marriage or anything else when they violate the constitution, as you can see from by above link. By your reasoning, the states should have also been permitted to ban interracial marriage. Are you also of the opinion that Loving v. Virginia was a federal over reach.?
I would offer these points about marriage being a right:
1. Marriage is a right like Baptism is a right or funerals or communion.
You have the right to exercise your beliefs in any ritualistic form you choose.
So this is a right included under FREE EXERCISE OF RELIGION where Govt
can neither establish NOR PROHIBIT free exercise of religion (or expression
by freedom of speech also in the First Amendment).
2. To legislate what is a legal right either requires
a. State legislatures whose duty is to WRITE OR REFORM laws
(this is NOT judicial capacity to create laws, only to INTERPRET)
b. Constitutional Amendments ratified by States as with
establishing VOTING RIGHTS which has a written Amendment
(again this is NOT judicial duty to create laws or rights)
3. What the courts DO have authority to do is STRIKE DOWN
bans or laws that discriminate in unconstitutional ways.
Striking DOWN a ban on gay marriage or on abortion etc.
is NOT THE SAME as "creating a law making it legal."
For example, if courts were to STRIKE DOWN a law BANNING Christianity
that's NOT the same as "making Christianity legal." It was already legal
to practice under FREE EXERCISE OF RELIGION. the State is NOT endorsing
Christianity NOR is it "requiring states to implement Christianity"
by removing a ban against it.
So striking down a ban on gay marriage is not requiring States to implement it either.
It's just saying that once States HAVE marriages within state law
then it can't be discriminatory. And this is why I agree with Libertarians
and other Constitutionalists who argue that if people cannot agree on marriage
laws or beliefs, then NONE OF THAT SHOULD BE INCLUDED IN GOVT LAWS:
* if PEOPLE of a state AGREE on "marriage laws" then when those people
authorize the STATE to legislate it, it's not violating the beliefs of any citizens.
* if PEOPLE of a state DISAGREE on marriage laws and beliefs, then legislating
one belief or bias over another would discriminate against people opposed,
such as the case with marriage laws banning same sex marriages which violated
the beliefs of people who were unequally excluded, so in those cases I would
recommend either NEUTRAL or NO laws on marriage, but stick to civil unions
and decide benefits based on financial contracts that people agree to,
instead of regulating social relationships. And if people can't agree on terms of
benefits, then separate THAT from govt as well and manage it privately, just as
church groups decide on programs for their own members, not for the entire public!
You're comparing marriage and religion.
Can you point where in Constitution is mentioned marriage, as is religion?
Ame®icano
I'm saying Marriage like Baptism or other religious rites
is INCLUDED under "free exercise of religion."
I'm saying it isn't a separate right like Gun Rights or Voting Rights
that are established by Constitutional process of passing Amendments ratified by States,
not created by judicial rulings or passed by Congress without Amending the Constitution.
Where does it say that marriage is free exercise of religion?
Ame®icano
It's not literal or the same.
Marriage beliefs and rituals are an "application" of free exercise of religion.
Just like other rites and rituals, from Baptisms to Communions or Prayers.
"Free exercise of religion" doesn't LITERALLLY state "Christian Prayer" either.
But that's understood to be covered as an activity under "free exercise of religion."
Beliefs of Buddhists, Muslims, Quakers, Catholics, Atheists
are all understood to be variations under "free exercise of religion."
NONE of those are expressly specified, but generally accepted
as included under "free exercise of religion."
I ask why don't we recognize ALL beliefs under this?
LGBT beliefs
Beliefs about health care
Beliefs about marriage
and other Political Beliefs so these are respected and protected
as free choices and not imposed on other people by abuse of govt
That way, all people are protected and treated equally
REGARDLESS of beliefs or whether they belong to large groups or not:
NOTE: it actually makes more sense to me that we NOT restrict through govt
what constitutes "free exercise of religion" to the point where we DISCRIMINATE
and protect only SOME recognized beliefs while denying equal protection to other beliefs.
That would be a form of discriminating by creed, if only people who were part of a recognized
belief or religion got protections by the First Amendment while people with beliefs that aren't
part of a large organization get denied equal protection of the laws. We don't want to get
the govt into the business of REGULATING what beliefs count as protected or not.
What matters is if people are violating laws and committing abuses or not.
It's not their beliefs that can be regulated or policed by govt, but whether
they are committing violations that breach the rights or protections of others.
Huh?
If what you say "Marriage beliefs and rituals are an "application" of free exercise of religion." is true, what is the government role in marriage, and why are they involved at all?