Yup at the very least, the 10th comes into play and the fact that there is no long term historical basis for recognizing gay marriage.
However, I have had arguments with those who cite the 9th as some justification for its legality, just as the Court found for federal abortion rights using the 9th.
There are many cross currents here and I am actually surprised it took this long to come to the fore.
Yes I like the phrase “cross currents” you used.
A complete analysis requires several constitutional provisions to be considered.
With regard to the 9th Amendment, my understanding is that it should only be used to recognize existing rights, not “new rights”.
For instance, I strongly believe that home schooling is deeply rooted in the history and tradition of the United States. So if a state were to ban it I would be fine the court recognizing this right and characterizing is as essential to ordered liberty.
The left would cry activism, but they have no credibility and are intellectually dishonest. So it’s hardly worth arguing with them.
I would also suggest that our right to keep and bear arms could be easily protected the same way even in the absence of the Second Amendment.
The historical record would support that finding in both instances.
The left on the SCOTUS has really ruined a beautiful document. It worked pretty well until FDR.