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Politics : Polite Political Discussion- is it Possible? An Experiment.
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To: Dale Baker who wrote (1138)8/22/2006 11:49:02 AM
From: epicureRead Replies (1) of 1695
 
writ.news.findlaw.com

I can't spend that much time looking for such a case- but I bet there are some. Here's a case where discrimination was upheld because there was a "compelling interest"- which apparently doesn't always have to be that compelling- in the "strict scrutiny minus a few molars"...:

"Meanwhile, just as rational basis review has been changed, strict scrutiny has been changing apace. Consider the courts decision upholding the Michigan law school affirmative action program, despite the application of strict scrutiny. One might say that the Court has now minted "strict scrutiny minus a few molars and incisors." Perhaps it implanted the missing teeth into its rational basis review.

Justice O'Connor's opinion upholding the affirmative action plan simply cannot be squared with traditional strict scrutiny. For instance, it explicitly rules that courts must "presume" that universities are acting in "good faith" when they declare diversity as a compelling interest.

But that makes little sense: It's the courts, not anyone else, who are supposed to decide if compelling interests are indeed compelling - and sincerely offered. After all, strict scrutiny is only triggered when a governmental actor has made a classification that is inherently suspect.

This kind of presumption can soften the compelling interest requirement. (It must be compelling if it's presumed to be sincerely offered, right?"

Maybe we discriminate against gays because the discrimination is so very sincere? I found the above reasoning hilarious, btw, but it does show that the court will stand on its head to do what it wants.
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