But here's the rub ... If it goes to the Sup. Ct., will Scalia and the other conservative Catholics base their decision on the constitution or their old Catechism books?The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. That is to say, that the constitution does not specifically list a right does not mean that we do not have it. The argument that we do not have the right to marry merely because the constitution does not say that we do, or that we lack any right because the constitution does not specifically guarantee it to us, is ALWAYS wrong.
I don't want to bother with quotes but we'll address the other points brought up.
1. Religion has no special hold on marriage, least of all a single religion in this country. For thousands of years, societies have been making rules about marriage, both for spiritual and secular reasons. And even so, most Americans don't want their marriages to suddenly have no legal authority. The vast majority of the people in this country, married or not, want marriage to be a legal status. These laws trace at least back to 13th century England, which is about the earliest legal body that our law is based on. In that society, while religion (and pretty much just Catholicism) had a part in marriage, it was still a legal status. That said, the favor given to a singular religious body and the entanglement it held with the law would be grossly unconstitutional in this country.
2. The "get government out of marriage" argument would always end up with a couple having fewer rights. The argument usually ends up demanding that all of the designations like medical and legal proxy and inheritance be determined in a living (or not) will, but there is absolutely no private contract that will confer on one partner immunity to being compelled to testify against the other. A loss of rights is guaranteed and there is no benefit obtained in exchange.
3. The supreme court has recognized marriage as a fundamental right that is protected by the constitution. Even if a state wanted to refuse to recognize marriages (which would be against the wishes of the people in that state), it would still have to recognize the status conferred by marriages in other states, or federally recognized ones.
There is no serious movement to destroy the legal institution of marriage. Since that is the case, there is no constitutional grounds for denying gay couples access to it. Marriage is a constitutionally protected fundamental right according to numerous supreme court cases, and thus is law, since we use a common law system. In order to infringe on that fundamental right, the government (state or federal) must provide reasoning to pass at least a rational basis test, likely a higher one. Every court case thus far that has addressed the overall constitutionality of SSM bans has found them unconstitutional. The Prop 8 case in California, which is the current highest level case, will be persuasive in any future deliberation, and it holds that SSM bans fail to meet even the rational basis test, and I am inclined to agree.
Please, what government interest is banning SSM rationally related to?