After all, neither marriage nor contraception is mentioned in the Constitution, and it’s exceedingly unlikely that a legal test that hews so closely to tradition would yield the answer that birth control or same-sex marriage was deeply rooted by the time of the 14th Amendment’s ratification in the late 19th century. “Alito’s text-narrowed-by-tradition approach - if applied consistently - would seem to eliminate other rights that aren’t explicitly listed in the Bill of Rights, including the right to birth control and same-sex marriage. Kyle Kulinksi is concerned that the right to do hardcore drugs, the right to engage in sodomy, the right to engage in prostitution, the right to contract a plural marriage, gay marriage or interracial marriage and perhaps even the right of young children to have vitally needed sex change operations is imperiled by the legal reasoning that Justice Alito is summoning to strike down Roe.