dbackjon wrote:Ivytalk wrote:
All of these questions are invited by footnote four of Carolene Products. And that is precisely the problem. Carolene Products has invited a number of questions which are, in my opinion, not truly relevant.
Who cares if "gays" are a "discreet and insular" minority and why should they have to show that before some dubious law which affects their ability to fully participate in benefits made available to others be stricken? Let's say "Law A" has the impact of affecting the ability of a gay person to determine who can make health care decisions for their benefit in the event of a disabling injury; however, the government proposes a rational reason for this law. Why should the constitutionality of that law depend on whether gays are a "discreet and insular minority?" If they are, the law fails the strict scrutiny test; but if they aren't, the law passes the "rational basis test." Same law, same impact; but if gays are deemed to be a discreet and insular minority, the law is unconstitutional. I have problems with that. A law should be deemed unconstitutional if it has an unconstitutional impact, regardless of who is "victimized" by the law. Although minorities are beyond a doubt the targets of such laws, their status as minorities shouldn't be relevant. It is the law itself, and the impact of the law, which is relevant.
Fundamentally, Carolene Products creates a subgroup of American citizens who are specially protected and who thus have special standing in our courts to object to laws -- a subgroup of citizens against whom restrictive laws are presumptively invalid. This creates the tendency on the part of special-interest groups to try to portray themselves as victims in order to achieve that special standing; and it invites pretextual arguments on behalf of interest groups as to why they oppose laws, and of behalf of legislatures as to why they enacted laws.
One of the points of the book I hope to write someday is to show how both interest groups and legislatures have often advanced pretextual reasons for their conduct, in light of Carolene Products.
In any event, it has been frequently noted by commentators that groups with special interests frequently depict themselves as "victims," and go to lengths to show how they have been victimized -- the "victim" in American politics. Why has this happened? Because Carolene Products gives victims a leg up in our political and judicial systems.
A law which prevents a person, because of his sexual orientation, from choosing someone other than the closest blood relative to make decisions about his health in the event of a disabling injury is unconsititional, in my opinion, because it restricts his liberty to make such an important decision based on sexual orientation. It makes no difference whether marriage is a fundamental right; or whether gays are a discreet or insular minority. The law is wrong because it has discriminatory impact in and of itself, and deprives a person of a liberty right that other people take for granted.
