The "right to privacy" to have sexual relationship with the gender of your choice is clearly a right "retained by the people," as protected by Amendment IX.
If two consenting adults wish to have a contractual union of their lives and thus their assets, why would they not be afforded "equal protection of the laws?"
I am not a homosexual. I believe homosexuality, in particular for males, is a death wish.
But I think it is textually clear in the constitution that a citizen has a right to make a dumb decision about their sexual lifestyle.
As to your remark about "consent of the governed," I have never consented to being governed.
I have "consented" to give up the natural right of protecting my natural rights on my own by "delegating" in an enumerated and limit amount, to my government, the "power" to help me protect my natural rights, in conjunction with my fellow citizens.
In the absence of actual consent, a law must be shown to be necessary and proper for it to bind in conscience. To be proper it must, amount other things, not violate the rights "retained by the people."
Well that is the heart of the entire debate here -- who is to decide what these unenumerated rights are. The Ninth Amendment does not say that it is for the judiciary to declare for all what constitutes one of these rights.
That you apparently take the view that it is proper for the Courts to decided for all how the 'spirit' of the Constitution conveys rights never envisioned as an extension of the parts of the Constitution they use to derive them from, places you firmly on the side of the Left in this debate.
If there is a right to privacy and abortion and gay marriage then that is for the people and their elected represenatives to decide.
My comments about the consent of the governed have to do with Original Intent. There is a certain understanding of what the Constitution and its following Amendments meant when passed, or given consent through the ratification process.
You think that the right to privacy, and all that entails, is 'clearly' a right retained by the people. Who says? The people haven't said that. That you support the notion that its proper for judges to make these sweeping decisions is to place them on a footing clearly superior to its allegedly coequal branches, and to confer a level of power to them not intended by the Founders. And it gets into all sorts of inconsistencies. Tell me, since the Sup Court in the late 80s said that state sodomy laws were constitutional, does that then mean that was in fact no right to the private sexual relations you speak of until the Court reversed itself a couple of yrs ago? What if they reverse themselves again? By accepting the notion that its proper for the Courts to be the final arbiters of what does and does not constitute one of these enumerated rights means one must accept this seesaw back and forth.
And then of course you take it further by saying that not only does this 'right' to private sexual relations exist, but that it is also a right to have it recognized in the public realm. That's ridiculous. Society is under no obligation to grant recognition to something of no societal value.
You say for a law to be proper and necessary it must not violate one of these unenumerated rights retained by the people. So I ask again; who is to say what these rights are? You apparently favor having judges determine this, while I prefer it be left to the people. At the time of Roe, when the Courts overstepped its proper bounds and made national law, some more liberal states were already moving to liberalize their abortion laws. This would have continued. Connecticut's legislature, in a first, just volunatarily decided to grant civil unions to homosexuals in their state. On the other hand, the people of 10 states last year voted to bar gay marriage and civil unions. That, in the absence of a Constitutional Amendment, is how it should be handled. If one does not like it, then they can always vote with their feet and move. Its the United States, not the Uniform States.
The problem the Left has is that they are an intolerant bunch. They know that most states disagree with them about what constitutes a Constitutional right. They know they can't win via the proper political and popular channels. So they turn to the one branch that can impose their radical, out-of-the-mainstream views on the entire nation, and in doing so dress it up under the umbrella of protecting Constitutional rights that apparenlty never occured to those who actually crafted and ratified the Constitution.