based on what. Marriage has never been a right, it has always been a privilage. You dont need to apply with the government to exercise a right.
Th Supreme Court says otherwise. About 4 times going back nearly half a century.
Where is it written into the constitution?
Where in the Constitution does it say that a right need be enumerated to exist?
You may wanna take a look at the 9th amendment. With special attention to the words 'reserve' and 'rights'.
You miss the point.
The legal institution of marriage exists because of the laws that create it. Laws do not create rights.
You miss the point, being insufficiently informed about the history of marriage laws or the 14th amendment to recognize where you went wrong.
First, the right to marry was recognized in response to the state's actions that would make it impossible or criminalized it. And criminalizing marriage would most definitely deny an existing right. As living as man and wife was a criminal act. If you believe marriage is secular or religious, criminalization would prevent one from entering into it.
Such was Loving v. Virginia where interracial marriage bans were overturned where the marriage was recognized as a right. As gay marriage wasn't criminalized, this rationale is less relevant to it. But thoroughly relevant to the right to marry as a legal principle.
Second, marriage as an institution in our legal tradition isn't based on any specific law. But has been recognized for as long as we've been a nation. Before a single legislatures passed any law regarding marriage, it was already a recognized institution. You equate regulation with legal recognition. And they aren't the same thing. The State's recognition of marriage predates its involvement in it.
Negating your premise a second time.
As the State's recognition of marriage (and the right to it) aren't predicated on the State's regulation of marriage by any law.
Third, the 14th amendment.The basis of the Obergefell ruling and key to the specific legal questions asked of the court in regards to this case:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
http://www.supremecourt.gov/orders/courtorders/011615zr_f2q3.pdf
The 14th amendment requires equal protection under the law. With the State's issuance of marriage licenses, same sex couple have a right to marry under the law. If the State issued no marriage licenses, then no such equal protection violation.
As long as the State has marriage under the law, same sex couples have a right to it.
Fourth, the concept of individual autonomy and the Due Process Clause:
"The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.'....
.....This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. Decisions about marriage are among the most intimate that an individual can make. This is true for all persons, whatever their sexual orientation.
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
All of which invalidate your premise and reaffirm what the court has recognized for at least half a century: the right to marry.
