As an aside, where in the Constitution does it say that sodomy is a constitutional right?
“As an aside, where in the Constitution does it say that sodomy is a constitutional right?”
Are you kidding??? Sodomy and Abortion are the Cornerstones of Civilization!
I don't want to be a contrarian on this issue, but I believe that "constitutional rights" are those that are inherent in ourselves, that is, endowed by our Creator. They don't rely on others to provide them.
To your question, I'd say that the 9th amendment opens up a box for personal behaviors:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.The focus of the Constitution is to lay out what the federal government can do and not do. It is not a document of what the people can do and not do (other than the Bill of Rights amendments that followed ratification of the Constitution itself).
The reason that abortion does not rise to the level of a Constitutional right is that it compels another person to perform the abortion. If a person were to use a contraceptive, a "day after" pill, or some other abortifacient in the medically safe timeframe, that would be a personal choice covered by the 9th amendment. Once a doctor or other service provider becomes involved, then it becomes open to regulation the appropriate governing bodies.
Side note: I once asked the question "Fertilization does not equal implantation; implantation is not guaranteed (not including post-implantation miscarriages). So, what is it called when a fertilized ovum is naturally flushed from a woman's body unimplanted?" The point of my question (which went unanswered) was that if life begins at conception, then what is flushed naturally from a woman's body? I didn't mean it to be a trick question, but I did want to explore the difference between a zygote and an embryo, and what is it when a zygote is flushed naturally (with the woman unaware) versus when it is flushed by a morning-after pill.
Regarding alternative lifestyle behaviors, that, too, would fall under the 9th amendment rights retained by the people. However, the subject of marriage becomes a public act, and as such is regulated by the state as to who can perform marriages, what responsibilities and benefits derive from being married, and who can be married. Again, marriage does not rise to the level of a Constitutional right when another person is involved in performing the marriage.
Anyway, that's my "hot take" on the matter.
-PJ