Friday, September 12, 2008

British writer offers comments about strict scrutiny, possibly important still in military cases


British writer Philip Chandler, who has lived and worked a long time in the United States, has written a most interesting posting about the role of “strict scrutiny” in the 2003 Lawrence v. Texas opinion and the possible role such a holding could still have in military cases (regarding “don’t ask don’t tell”) in the future, even though so far all appeals courts have ruled for the government (keeping the issue out of the Supreme Court until now; note that Keith Meinhold’s win in the 9th Circuit concerned the old policy (“123 Words”) before “don’t ask don’t tell”).

Chandler says that the two circuits analyzed what the Supreme Court actually did with the 2003 opinion, rather than what it says it did. He mentions the Ninth Circuit in reinstating Witt v. Department of the Air Force, No. 06-35644, and that a divided First Circuit made a similar finding (referring to Roe v. Wade) also. The link is here in a posting Sept. 12 titled “The Importance of the Courts as the Elections Draw Near” in a Townhall blog called "Gay Equality and the Law."

The emphasis on fundamental liberty interests presumes an intellectual “bias” toward individual sovereignty, including that the individual should be absolutely accountable for the self insofar as avoiding harm to others. The courts have slowly moved in this direction, even though they often talk about “moral notions” of the past without explaining what that means – beyond religion, I think it has something to do with “karma.”

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