The big problem in allowing the courts to have a say in marriage is that this cedes to the government the ability to define marriage — even a constitutional amendment defining marriage is dangerous this way: because once it is accepted as legitimate then it may be altered the same way it was created and, having ceded the power to define it, you no longer have a valid objection to the state defining it. (i.e. like the Constitution only mattering when it is beneficial but ignored when it is cumbersome or would prevent things that are now done by tradition
[like asserting the interstate commerce clause allows the regulation of intrastate commerce [and non-commerce] to support the War on Drugs].)
even a constitutional amendment defining marriage is dangerous this way: because once it is accepted as legitimate then it may be altered the same way it was created and, having ceded the power to define it, you no longer have a valid objection to the state defining it.
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I get that argument. I do. But its wrong. Here’s why.
History proves that for over 200 years the government had control and power over marriage. They defined it. And yet it worked. America and our families grew and prospered.
Until LBJ came along. So. Would you argue that our Constitution and our laws for over 200 years were wrong in the first place? That LBJ proved it doesn’t work?
I wouldn’t.
When did the state not define legal marriage in America?
If it had been only private, then we would would not have had to wait until today to get gay marriage and polygamy.