Nivek wrote: The current issue is same-sex marriage, and I don't see anything in the constitution that would justify preventing it.
I know I can't win this argument, but I'll give it a try anyway.
I don't think the issue is what the Constitution "prevents" or "forbids" or "bans" or whatever. I think the issue is what the State (at both the national/federal and individual state level) is required to recognize. And for this, I think the polygamy question is at least relevant.
What I mean is - if the Constitution (or any given law currently being proposed or considered) actually "prevented" or "banned" same-sex marriage, it would require the state to step in and break up ceremonies, force couples out of their homes, etc. DOMA and related laws do no such thing, and do not prohibit anyone from doing anything. What DOMA does is say that each state may decide what it chooses to recognize as a marriage, and is not bound to recognize what another state recognizes. The relevant text:
`No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'
And then, on the Federal level, it does define - for Federal purposes only - marriage as existing between one man and one woman.
But, you say, doesn't it prohibit some couples from gaining the benefits associated with the recognition of marriage, such as tax benefits, adoption, power of attorney, etc. Yes, this is true. And the government does this all the time, every time it decides to intervene into personal interactions and also decides what it will and will not recognize as legitimate.
Let me offer a somewhat facetious example. Suppose I become enamored with Native American culture. I might get into native art, learn the dances, soak up the history. I might even identify so strongly that I convince myself that I really am a Native American and tell others accordingly.
Should the government stop me from introducing myself as a Cherokee to everyone I meet? No, of course not.
But is the government required to acknowledge me as a Cherokee? If I claim it, can I apply to college or for a Federal job under the category of Native American? Can I open a casino? Could I run for Senate from Massachusetts? (Oh, just had to go there, didn't you?!?!)
Point is, if the government has a compelling reason to define who should be the beneficiaries of its own largess, then it would stand to reason that it can apply whatever relevant criteria would apply. My utter lack of Native American heritage (I can get a sunburn from a 100-watt bulb) means that they can say they do not recognize my claim to official status as a Native American for federal purposes, even as they allow me to go on telling tall tales to all my friends and neighbors.
Or, alternatively, the government could get out of the largess business - from quotas to marriage to preferences and so on.
For right now, I'm not arguing for or against SSM. I am saying that the issue at hand is simply whether the government (federal and state) is free to set its own definitions or is required to recognize whatever an individual citizen claims for himself. And there may be a whole set of unintended consequences out there after the decision comes down.
"A society that puts equality - in the sense of equality of outcome - ahead of freedom will end up with neither equality nor freedom. The use of force to achieve equality will destroy freedom" Milton Friedman, Free to Choose