I always thought it was a state's right, and I don't agree with bootstrapping everything to the commerce clause either. Assume for a minute that it is a state's right. How could it be handled without the Fed?
The states can have bilateral arrangements regarding marriage recognition, or even a universal code that they can sign onto or something like that. The feds don't have to be involved necessarily.
Personally, I would like to see lots of the Federal stuff thrown out the window and put back in the state's hands. I like the 10th amendment, and I think repeal of the 17th might be a good thing too.
Our nat’l congress critters ignore what is good for the states and the people and I for one am sick of it.
It’s never been an enumerated power of the federal government. The argument in reynolds is that marriage carries over from the common law tradition, and that the federal government has a duty to retain the defintion.
They argue that as the Federal government has no power to change the definition, neither do the states.
The states don’t have bilateral definition of marriage, marriage isn’t in their purview at all. They have an obligation to recognise marriages throughout the US. They also have an obligation to retain the current definition of marriage.
For example, the federal government has an enumerated power to defend immigration laws. So long as marriage between an American citizen and a non-citizen resident confers upon it citizenship status to the resident, the issuance of marriage licenses remains a federal purview.
This is why Massachusetts wants it to be a state responsibility because states would effectively have control over their own immigration policies, as we do here in Canada. The state argument is a terrible one.