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Politics : View from the Center and Left -- Ignore unavailable to you. Want to Upgrade?

To: TimF who wrote (112188)	5/30/2009 3:18:49 AM
From: cnyndwllr	Read Replies (1) \| Respond to of 541701

Tim, re: "Strict Scrutiny - Which requires a narrowly tailored solution, using the least restrictive means, to forward a compelling state interest, isn't generally applied to "matters critical to our pursuit of happiness", but rather when a fundamental constitutional right is infringed". That's true. And don't forget that where a constitutionally protected right is potentially infringed the first element of the courts will examine is whether or not there is, in fact, a compelling state interest that justifies the next step, i.e. that least restrictive means test. And you're also correct in stating that there is no constitutionally protected right to the "pursuit of happiness." The "inalienable rights" language of our founders used that term but the court's have not, probably because it's far too broad. What they have done is engage in mental gymnastics to incorporate fundamental rights into vague and ambiguous constitutional language and then apply those protections to limit the power of the states to legislate against those rights under the 14th amendment. These days it is well accepted that the constitution is a living document that will, like legislatively enacted laws, be interpreted according the court's view of the intent of the drafters. In our complex, information and fact evolving, ever changing society that is, I believe, smart judicial policy. With regard to many of the instances where the court intercedes to limit the power of the legislatures to restrict rights, the group effected is a minority group, and most often it is a minority group that the majority is not sympathetic to. (The courts understand that non minority groups or minority groups with majority support have legislative avenues of redress available to them.) And my post on homosexual marriage was a blunt way of cutting through all the legal machinations that courts might use to "find" a right under the constitution. The real test is, I believe, whether the issue is so important to the individual and so "none of your business" to the state that the court will wrinkle it's collective nose and find a way to work in the protection. I think that allowing homosexuals in a loving relationship to have all the bells and whistles of marriage, including the status and legal rights that accompany it, falls into the category of things that are powerfully important to the individual and none of the state's business. And that's why I wrote my post the way I did. Ed