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marriage is a religious institution, seems pretty clear.

That's the issue, there is no single definition. Firstly, the practical issues of every religion having different views on marriage that may be incompatible with municipal law. Further, in many countries the religious institution of marriage is purely symbolic and not legally binding. There is a wholly separate category of civil marriage, which is often intertwined with things like contract law and tax law, meaning that the denial of it to certain groups can be construed as discriminatory. Once the state is involved, many bets are off. Furthermore, some jurisdictions have so called "common law marriage" clauses that allow for circumstances indirect to religious or civil marriage, such as a domestic partnership, to be considered legally binding marriages.

I generally support having marriage be privatized and simply be a contract set by N parties that is arbitrated by courts, but your presentation omits crucial details. Moreover, whether the ideal marriage privatization is even feasible under the current disparate laws remains an open question.

Financial transactions are not necessarily "very high privacy" in the U.S. Financial transactions over $10,000 are required to be reported to the government, as well as transactions that a banker believes are part of a cumulative transaction over $10,000.

https://en.wikipedia.org/wiki/Bank_Secrecy_Act

In addition, banks are not allowed to open accounts without verifying the customer's identity.

https://en.wikipedia.org/wiki/Know_your_customer

I don't think it's clear how well credit card transaction data is protected against subpoenas, and there is a rumor that one or more of the many undisclosed §215 bulk collection programs relate to financial transactions. There are statutory protections for financial transaction records, but the Supreme Court has held that a bank account holder has no constitutional expectation of privacy in the bank's records. U.S. v. Miller, 425 U.S. 435 (1976).

To the government is one thing, you have to report all income to the government over a certain threshold. If you are a corporation trying to buy votes, then your finical dealings are highly private.*

*Citizens United v. FEC

I think looking at your gay marriage example exemplifies why your thinking is wrong.

Your interpretation reads the phrase "establishment of" completely out of the text. A perfectly reasonable interpretation of that text is that Congress isn't allowed to establish a national religion. And using your logic, we should fire all the judges who have interpreted the establishment clause to prohibit more than that.

Similarly, there is a perfectly reasonable interpretation of the 4th amendment that looks at the things protected in the enumerated list (person, house, papers, and effects) and concludes that it only prevents what would be a trespass to property if not done by the government. Judges who read in a "right to privacy" from that, according to your view, should be fired.

In fact, the whole "right to privacy" hiding in the "penumbras" of the Constitution can be discarded, and the judges who read that in should be fired too.

Alternatively, I think your problem is not with judges who don't uphold the Constitution, but rather your interpretation of it.

The Supreme Court found this in Everson Vs. Board Of Education: “The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another."

'aid all religions' is the key point and is consistent with my reading. By applying that same logic you are forced to come to the conclusion that by having a government sanctioned marriage, and by giving tax benefits among others with said marriage. You are aiding a religion and thus it is unconstitutional.

The only thing that the text of the Constitution compels is the first sentence: "neither a state nor the federal government may set up a church." That's a narrow, literal reading of the text, but it's a totally reasonable one.

So, to apply your reasoning, why shouldn't we fire the justices who decided Everson v. Board for contravening the Constitution by adding a bunch of things to the establishment clause that aren't in the text?

Government sanctioned marriage, per se, is completely neutral to religion or its absence, out neither files rules that are particular to religion, not only annoys the religious. So, no, it doesn't violate the rule laid down in Everson.

>marriage is a religious institution, seems pretty clear.

No one is debating marriage the religious institution, you can go have whatever private marriages you want, and religions can still discriminate. What was being debated was the somewhat different, marriage the legal entity that effects inheritance, joint custody and all the other legal benefits that spouses get. They commonly occur together but they do't have to.

Clearly, but why do married people get any benefit that people who are not don't have? Isn't that in and of itself discriminatory? Isn't the government defacto promoting region in general by giving tax breaks to people who choose to contract with each other in such a manner?

Marriage as a legal entity is a legal recognition of a social custom. While some prefer to establish that social custom with a religious ceremony, there is nothing inherently religious about it. For example Buddhism has no religious institution of marriage, yet countries that are primarily Buddhist still have marriage as a civil entity.

> marriage is a religious institution, seems pretty clear.

Marriage has been a civic institution arranging property and legal rights as long as it has been a religious institution.

The separate civic and religious functions were often intertwined in societies which did not separate Church and State, but there are clear and separate served by the now-separate civic and religious institutions sharing the same name.

I'd like to see a source for that. Early government was religious in nature (Many kings were considered gods). What is your solution? Change the name? I can agree with that as long as 'married' people don't get any benefits that unmarried people do not.

>not once did I see someone question if the government even has a right to determine who is allowed to be married, and why is should be involved at all.

This has literally been the Libertarian Party's position since the early 70s: it's none of government's business deciding whom one is or isn't allowed to marry.

> All we really have to do is fire judges (and those that appoint them) who do not uphold the constitution

The biggest problem with doing something like this is coming to an agreement on exactly what the constitution allows and prohibits (and somehow also get everyone to agree that the constitution should be followed, because there are people all over the political spectrum who don't think that).

I'm married. I don't have/follow any religion.

As the sibling stated, this is mostly for law (and therefor state?) related purposes. Taxes. Shared custody. Being able to inquire about my wife's medical situation, should she end up in hospital. Inheritance. Shared property ownership.

Religion is an entirely unrelated, orthogonal (and private, i.e. I agree that the state should have no say here) concept.

Unfortunately, passing an amendment is nearly impossible in the United States, leading to a much more hateful and uncompromising struggle to get everything you care about before the Supreme Court.

Scalia has this nice little statistic showing that just about 2% of the American population can kill any constitutional amendment.

Not any 2%, of course, just the 2% in the least populous states.

I have a feeling the country was at least 2% racists in a few low population states in 1964 when the twenty fourth amendment was passed to get rid of the poll tax. If you think the current system is bad, pass an amendment and fix it.