Gopi wrote about how he preferred that the gay marriage question be settled via legislation rather than by court action.
That made me curious under what authority granted by the Constitution does our government regulate a "sacred institution" in any way whatsoever?
Turns out that that's a rather involved question, but I found a good place to start is GPO Access: Constitution of the United States: Main Page. Searching for "marriage" of the 1992 edition plus supplements yields various results.
I am sure that any amount of research will reveal that marriage records have been recorded and regarded by the state as legally recognized relationships since the begining of the U.S., primarily descending from English common law. Existence is certainly not a proof of correctness. I am of the current opinion that our government should disassociate itself from the religious significance and not recognize any marriage. "Civil unions," "guardianships," "(biological) parents," should be relationships that the law recognizes in as much as they are minimally required to protect the interests of children. Are there any other compelling state interests that require recognition of such relationships?
The following analysis of the 14th Amendment recognizes some views expressed by the Supreme Court with respect to how marriage may be regarded:
In Zablocki v. Redhail, importing into equal protection analysis the doctrines developed in substantive due process, the Court identified the right to marry as a ``fundamental interest'' that necessitates ``critical examination'' of governmental restrictions which ``interfere directly and substantially'' with the right.
U.S. 374 (1978).
Although the Court's due process decisions have broadly defined a protected liberty interest in marriage and family, no previous case had held marriage to be a fundamental right occasioning strict scrutiny.
Although the passage is not phrased in the usual compelling interest terms, the concurrence and the dissent so viewed it without evoking disagreement from the Court.
Other restrictions that relate to the incidents of or prerequisites for marriage were carefully distinguished by the Court as neither entitled to rigorous scrutiny nor put in jeopardy by the decision.Quoted (with minor cleanup) from: GPO Access > Constitution [DOCID:amdt14-11] From the U.S. Government Printing Office via GPO Access [U.S. Constitution - Analysis and Interpretation] [14th Amendment--Rights Guaranteed...] [Page 1869-1925]
Certainly, the inattention of government bureaucracies should have no bearing on how our society conducts itself and couples should still be able to enter into and call marriages whatever their particular brand of religion recognizes as such. The government would have no grounds for interfering with such personal commitments in as much as they are a form of religious expression. In addition, this would free the minority religions that recognize bigamy and polygamy and have suffered religious discrimination which has survived despite being a matter of religious opinion and expression that should be protected.
Many years ago, it does appear that the Supreme Count was party in upholding such violations of the 1st Amendment explicitly because of their prejudices with respect to marriage:
Subsequently, an act of a territorial legislature which required a prospective voter not only to swear that he was not a bigamist or polygamist but as well that ``I am not a member of any order, organization or association which teaches, advises, counsels or encourages its members, devotees or any other person to commit the crime of bigamy or polygamy . . . or which practices bigamy, polygamy or plural or celestial marriage as a doctrinal rite of such organization; that I do not and will not, publicly or privately, or in any manner whatever teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy . . . ,'' was upheld in an opinion that condemned plural marriage and its advocacy as equal evils. And, finally, the Court sustained the revocation of the charter of the Mormon Church and confiscation of all church property not actually used for religious worship or for burial.Quoted from: GPO Access > Constitution [DOCID:amdt1-2] From the U.S. Government Printing Office via GPO Access [U.S. Constitution - Analysis and Interpretation] [1st Amendment--Religion and Expression] [Page 969-1019]
While not directly addressing Gopi's fundamental question nor mine, I did find an analysis of the Ninth Amendment instructive. A selection from that analysis is quoted below, after a quote of the 9th and 10th Amendments themselves. Using the 9th and the 10th, it is straightforward to infer that there exist rights not explicitly recognized by the Constitution which are retained by the people. While the power of the federal government are enumerated, the rights of the people are not and should not be assumed to be.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.Quoted from: National Archives Bill of Rights Transcription
``The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.'' While, therefore, neither opinion sought to make of the Ninth Amendment a substantive source of constitutional guarantees, both did read it as indicating a function of the courts to interpose a veto with regard to legislative and executive efforts to abridge other fundamental rights. In this case, both opinions seemed to concur that the fundamental right claimed and upheld was derivative of several express rights and in this case, really, the Ninth Amendment added almost nothing to the argument. But if there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?Quoted from: GPO Access > Constitution [DOCID:amdt1-2] From the U.S. Government Printing Office via GPO Access [U.S. Constitution - Analysis and Interpretation] [1st Amendment--Religion and Expression] [Page 969-1019]
If Legislative or the Executive branch were to tread upon such rights, then it would be up to the Judiciary to correct such overreaches of power (given our current acceptance of the doctrine of judicial review). As the analysis above mentions, the decision of what rights exist and thus deserve such protection is an open question of great importance.