Because the constitution says what it says and it doesn't say what it doesn't say. It is a fundamental right, but the drafters of the constitution failed to mention it in explicit enough terms to adequately protect people. In fact, the people that voted in favor of gay marriage must have agreed that the constitution didn't adequately protect these rights, because they heavily referenced amendments (AKA modifications) to the constitution in their decision.
The constitution isn't perfect. If it was, we wouldn't have needed amendments to give women the right to vote, or to make minorities count as whole people. We need amendments to make it better.
For all I know, Scalia may have had bigoted alterior motives for his vote. However, I'm simply evaluating his argument (which if you'll reread my statement I wasn't actually agreeing with).
In an academic manner, you are right. Its silly that we have to do anything to keep any government from interfering with things that we consider to be fundamental rights.
I didn't suggest that the constitution mentions marriage. However, its failure to explicitly state it as a fundamental right is a large part of the reason gay people were oppressed for so long in our country. Historically, rights not outlined in the constitution fall under the authority of state governments.
Also note that the constitution and the bill of rights are more of a statement of rights we already have. The document isn't intended to actually grant the rights. No one can grant fundamental rights. However, having a constitution as a statement of rights can help protect them when others want to take them away.
Why do the Bill of Rights, the 13th, and the 19th amendments exist? They're all designed to protect fundamental rights. An amendment would afford non-traditional marriage the same protection.
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
An Amendment is also useful to avoid a right being lost in future rulings, or to raise the bar on what is considered a compelling reason to abridge that right. Remember, DOMA was overturned not just because the Courts recognized freedom to marry as a right, but because the Federal government was unable to offer a compelling reason why it was in the public interest to remove that right from same-sex couples.
Consequently, a Constitutional amendment may well have been necessary to end slavery, because even if the Courts were willing to recognize both slaves as citizens deserving of rights and "not being a slave" as an unenumerated right in 1865 (hint: they weren't), the Courts almost certainly would have been willing to hear arguments that slavery was in the public interest, even if it was an abridgement of the rights of slaves. They are certainly willing to allow de facto slavery of non-citizens and of prison inmates to continue.
In any case, demanding that we refuse to recognize a right until it is enumerated in the Constitution or its Amendments, when the Constitution itself both declares the existence of unenumerated rights and demands they be recognized is just fucking asinine.
To be clear: I don't have a problem with your answer itself, but the tone in both of your replies to my honest questions hasn't been helpful. You need to work on your presentation, or you're going to turn more potentially interesting information into something of shit value.
The problem is, the states legalized gay marriage at the state level, and DOMA which is invalid under the 9th amendment and powers clause caused a problem.
They should have struck down DOMA and let the states have their choice, as they do under the 9th amendment.
When Section 3 of DOMA (the portion prohibiting the Federal government from recognizing same sex marriages) was overturned, it was partially on a Tenth Amendment argument.
It was in overturning Section 2 of DOMA (the portion allowing States not to recognize same sex marriages performed in other States) that the Supreme Court recognized marriage rights as something which could not be restricted on the basis of the sex of the participants.
I am not certain you could construct an argument that would allow the Supreme Court to overturn Section 2 of DOMA without also declaring all State laws unconstitutional; once the Supreme Court recognized that right, the 14th Amendment applies.
This is why the right to self defense cannot be restricted by any interpretation of the second amendment. Same with speech and the first amendment.
Those amendments are restrictions on government, not creators of rights.
Why should a fundamental right require a constitutional amendment? IMHO, this is a cop-out for Scalia: he knows how hard it is to put together a constitutional amendment, so instead of just saying "no" and appearing like a bigot, he punted the question as a constitutional amendment. I'm sorry, but I don't buy his argument.