DOMA & SCOTUS: Update #1

"So yes, marriage is a Constitutionally protected right,"

This was a statement I made in my previous post "DOMA & SCOTUS" that I would like to clarify, as I do not make substantive changes to my posts.  I will make a grammatical or spelling correction, but I do not want to change the meaning of the original post.

So, in my haste to write a piece on SSM and get to bed at a decent hour (the latter was a failure) I happened to make a statement that does not reflect my understanding of the issue, at the point shown above.

I do not believe that marriage, on its own, is Constitutionally protected.  SSM is Constitutionally protected because discrimination is unconstitutional.  SSM, and marriage at all, is not guaranteed by the Constitution.  The issue arises with the government benefits associated with marriage, and that these benefits cannot be denied certain groups while allowed to others.  The Constitutional issue is not marriage, but discrimination and equality.

This brings me to the next piece in my update.  It had been brought to my attention that a better Libertarian argument would be to take government out of marriage altogether.  I understand the point, but would like to bring about a rational issue for government intervention (as an unfortunate necessity).

If the government were to remove itself from marriage altogether, there would be no marriage equality, because marriage would have no legal standing.  The Constitution guarantees we are all "Equal Under the Law", and the law only.  Therefore, a Church could choose to uphold a marriage or not, because they have religious freedom, and marriage would be nothing more than a celebration of love.

Now, if the government had zero involvement in marriage, that would mean all of the marriage benefits apportioned by the government would disappear, making the heterosexual married couples angry, and the homosexual married/ marriage pursuing couples angry as well.   There would be insurance issues, joint-tax return problems, etc. The overwhelming majority of Americans would not support this measure, and, after all, despite a growing federal government, we are still a Republic.

Unless, the government did remove itself from Marriage, let that be a solely religious thing, and replace it with "Civil Unions" or something of the like, that was purely a legal thing.  Then, churches could choose to perform marriage ceremonies for whoever, and those would not have any sway on the legal benefits guaranteed, then couples would go to the courthouse and get a Civil Union License that would guarantee all the same benefits.  So, heterosexual couples and homosexual couples would hold the same legal standing, and choose whether or not they even wanted a marriage ceremony.  The religious side keeps the "sanctity of marriage" while same-sex couples still get the legal benefits guaranteed by the Constitution... Would be a fine compromise, if I do say so myself.

Wouldn't it be nice if it were that easy?