That reasoning hasn’t been persuasive to courts. That kind of thinking would mean that laws prohibiting interracial marriage are constitutional and nondiscriminatory, because both white and black people can’t marry people of the other race.
The more coherent and persuasive argument is that insofar as there’s a fundamental constitutional right to marry that would be violated by anti-ssm laws, the right is limited to how the right would have been understood at either the founding or at the time of the 14th amendment - i.e. to opposite-sex couples only.
I appreciate your legal expertise! I offered my opinion and that is all it was. But here is my bottom line.
I don’t care who marries who. If the states or Feds say gays can marry, no skin off of my nose unless they unconstitutionally force religious organizations to perform those marriages.
God alone is capable of sorting that stuff out. If gay marriage interferes with the free expression of religion, I am opposed to that alone.
But if all of the states must recognize gay marriage, what do I care? It is a legal thing, not a religious thing.
But to force a pastor, priest or rabbi to perform such marriage, I believe violates the religious freedom clause.
I see very little discussion about divorce laws which seem to me to be inseparable from marriage laws, especially insofar as women have protections and financial advantages in many divorce laws.
Same-sex marriage is simply not a SCOTUS issue because it is not a Constitutional issue (same with abortion and many other things SCOTUS had had no business meddling with). It is a STATE’S issue.