NetNews Usenet Archive 1992 #27/NN_1992_27.iso/spool/co/general/1879

Internet Message Format | 1992-11-19 | 2.9 KB

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From: [e-mail] (Bruce Hayden)
Subject: Re: Constitution
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Date: Thu, 19 Nov 1992 05:42:26 GMT
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[e-mail] (Frank Crary) writes:
>I'm sorry: I originally mis-read that question, and didn't catch the "never"...
>As far as a removal of existing protections, there is a distinction but
>not one that has been raised before the Supreme Court (to my limited
>knowledge.) That means it's anybody's guess how they would rule. I
>suspect they would apply the "reasonable relationship test": Does the
>law have a reasonable relationship to a valid state interest? If
>so, they would uphold it. "Reasonable relationship", by the way, is
>extremely vague and means, essentially, and half-credible excuse the
>State's lawyer can dream up. In your hypothetical anti-Mexican
>amendment's case, "To reduce future unemployment by discouraging immigration"
>would constitute a "reasonable relationship." Alternately, the Court
>might subject the law to "strict scrutiny": Upholding the law only
>is the state can prove that the law is the best and most direct way
>to address its purpose. They might do this if the law in question effects
>a "prefered freedom" (which include voting rights) and/or effects a
>protected minority (ethnic/cultural minorities and usually considered this.)
>However, the current Court generally supports the doctorine of "judicial
>restraint", meaning they prefer to avoid the "strict scrutiny" test as
>much as they can. I rather doubt the hypothetical law, or Amendment 2,
>could survive strict scrutiny; however a good lawyer for the State could
>keep the matter on the level of reasonable relationships.
>                                                         Frank Crary
>                                                         CU Boulder

I cannot see the present court even consider using anything stricter
than a rational relationship test. The portion of the poplulation
that may suffer as a result of Amdt. 2 has few of the indicia that
the court likes to see, such as powerlessness. Indeed, withness the
boycott, the Gay community probably has political power way in excess
of their portion of the poplulation. Second, several, if not many,
of the members of the court tend to look at sexual orientation as a
lifestyle choice.

I think that you must look at the minorities that have been granted
special or heightened scrutiny. The court has become more and more
sparing in such treatment. One even wonders if intermediate scrutiny
for sex discrimination is grudging.


Bruce E. Hayden
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[e-mail]