Yeah ? And after 50 years of NOT RULING THAT, what gives you the notion that suddenly they will ?
Actually that is the gist of the Loving decision in 1967. That states can regulate Civil Marriage until such time as they violate rights.
EARTH TO JS: The SCOTUS has already ruled that they CAN discriminate. Are you reading the thread ? Try to keep up.
Which case was that?
United States vs. Carolene Products Co., and
Korematsu v. United States
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to
weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or intermediate scrutiny. These standards are used to test statutes and government action at all levels of government within the United States.
The notion of "levels of judicial scrutiny", including
strict scrutiny, was introduced in Footnote 4 of the U.S. Supreme Court decision in
United States v. Carolene Products Co. (1938), one of a series of decisions testing the constitutionality of New Deal legislation. The first and most notable case in which the Supreme Court applied the
strict scrutiny standard and found the government's actions valid was
Korematsu v. United States (1944), in which the Court upheld the exclusion of Japanese Americans from designated areas during World War II.
U.S. courts apply the
strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed,[1] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment.
To pass
strict scrutiny, the law or policy must be justified by a
compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred.
The United States vs. Carolene Products Co., and Korematsu v. United States were just the earliest of the cases of
strict scrutiny requiring
compelling interest. Over the years, there have been hundreds of cases involving this principle such as the Supreme Court under Earl Warren adopted an expansive view of the Free Exercise Clause. The Court required that states have a
"compelling interest" in refusing to accommodate religiously motivated conduct as it decided
Sherbert v. Verner (1963).
The
"compelling interest" doctrine became much narrower in 1990, when the Supreme Court held in Employment Division v. Smith that, as long as a law does not target a particular religious practice, it does not violate the Free Exercise Clause.
in 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the
"compelling interest" standard. In
City of Boerne v. Flores (1997) the Court struck down the provisions of the Act that forced state and local governments to provide protections exceeding those required by the First Amendment, which the courts enjoy sole power to interpret. According to the court's ruling in
Gonzales v. UDV (2006), RFRA remains applicable to federal statutes, which must therefore still meet the
"compelling interest" standard in free exercise cases.
Here's a few more examples (quoted right off the Supreme Court bench) >>>
“It [the university] must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” (
Widmar v. Vincent, 454 US 263, 270, 1981)
“For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” (
Perry Ed. Assn. v. Perry Local Ed. Assn., 460 US 37, 45, 1983)
“The Court of Appeals found the injunction to be content based and neither necessary to serve a compelling interest nor narrowly drawn to achieve that end.” (
Madsen v. Women’s Health Center, 512 US __, __, 1994)
“Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.” (
City of Boerne v. Flores, 1997 US Lexis 4035, 46)
