[VRWCmember]

Either these are rights retained by the people, or they are not. If they are retained by the people, the state can no more infringe upon them than the feds.

The 10th amendment address powers "retained by the states respectively, or the people." An example of a power retained by the people would be to enact a ban through referendum or state constitutional amendment (or through lobbying their state legislature) on homosexual marriage. However, the homo activists are attempting to get the courts to dictate that some heretofore undiscovered right exists within the constitution that would prohibit this power of the people via the 14th amendment. (Apparently your fondness of Marbury would support such a judicial dictate.)

[highball]

Yes, states have powers. But the Ninth Amendment addresses the rights that said powers cannot infringe upon:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That means that a right doesn't have to be listed in the Constitution to be a right. It greatly restricts you nanny staters, from the right or the left, from using the government to enforce your own personal version of morality.