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The real crux of the issue is that since regulation of marriage is not a power granted by the Constitution to the Federal Government, it belongs to the several States, or to the people. So, in order for the Federal government to regulate it, it must first grant itself that authority in the Constitution. Marriage is otherwise a state issue, and has been treated that way in most cases except, for example, Utah's being told to ditch the polygamy prior to statehood. See Amendment 10 for support for this argument. Really, what you're also saying is that if the Constitution does not expressly imply that you have a right to gay marriage, that it must be illegal. (remember that we were talking only of Federal law). This is fallacious, as demonstrated by the Ninth amendment to the Constitution, which reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. What this is saying is that just because the founding fathers decided to enumerate or list some of the rights that the government recognized, that that list cannot be used as evidence of the lack of some other right not listed. So to legalize it would take a change in law at the state level, whereas to make it illegal would take an amendment to the Constitution.