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.
The states were sovereign when the union was formed. Only the enumerated powers were given to the feds, it did not include the regulation of marriage laws.
Just some examples of states issues: The states decide at what age people get married and that is not uniform across the country. The states decide what the requirements are for a marriage license.
States have traditionally accepted marriages that were formed legally in other states. except for gay marriage. Texas recognizes common law marriages, most states do not.
Marriage is a state issue. However, the feds may decide what definition of marriage may be applied as it pertains to federal statutes, and that must be uniformly applied.
I personally do not believe that marriage should be redefined. but not because I accept that common law practices can not be changed.
Immigration policy is up to the feds. Therefore, they may decide upon the impact marriage may have on citizenship, but not the definition of marriage in individual states under state laws.
The statement I made regarding bilateral recognition was a hypothetical how could one look at it type of thing. Immigration policy is an enumerated power of the feds. Immigration policy does not confer federal rights to meddle in state marriage laws.
Do a google search, and you will find that states do have state laws that pertain to marriage, and that they traditionally recognize each other’s legal marriages, when residency changes.