the privileges and immunities of citizens of the United States.
Marriage is declared by the statutes of the States which prohibit intermarriage, just as by other States, to be a civil contract. If it is a contract and if marriage between a white person and a Negro in Massachusetts, for instance, is valid, when the parties go to South Carolina to live, how can the South Carolina courts declare the marriage a nullity and prosecute the parties for fornication and adultery without contravening the Federal Constitution? The only answer is: Marriage is a civil contract, but it is something more. Almost without exception, the courts have held that a State has the absolute control of the marriage status within its borders. The early case of State v. Gibson,[60] coming in 1871 during Reconstruction, sounded a warning to the Federal Government's interfering with the laws of marriage. The court said: "In this State [Indiana] marriage is treated as a civil contract, but it is more than a mere civil contract. It is a public institution established by God himself, is recognized in all Christian and civilized nations, and is essential to the peace, happiness, and well-being of society. In fact, society could not exist without the institution of marriage, for upon it all the social and domestic relations are based. The right of all the States to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the States suffer or permit any interference therewith. If the Federal Government can determine who may marry in a State, there is no limit to its power. . . ."
