Monday, April 27, 2015

Philosophical divide within conservatives on SCOTUS about "fundamental rights" could affect arguments tomorrow (legacy of 2003)


Fred Barnes has an important Washington Post story Monday morning, “Frequent allies on high court diverge over gay rights”, link here.  He refers to Anthony M. Kennedy and Antonin Scalia.
       
Scalia, remember, in Lawrence v. Texas, has “warned” that detoxing sodomy laws could actually lead to endorsing gay marriage.  In a sense, that seems to have happened.
 
Jeffrey Toobin asks if the founding fathers should solve the gay marriage case here
      
But most of the article concerns whether “fundamental rights” as in the constitution should only be those recognized by the founding fathers – something that immediately asks about the incorporation doctrine associated with the 14th Amendment.  The other side is that societal culture can come to a modern understanding that other individual rights are fundamental.  Part of that culture certainly relates to technology and to standard of living.  Tuesday, April 28, is the "big day" at SCOTUS. 

No comments: