Marriage: Gender and Conjoined Twins

[Trevor Morrison]

I take David's point.  He's right, of course, that Casey adopts undue 
burden analysis.  The question then is how to assess that move as a 
doctrinal matter.  I'd like to think about it some more, but my first 
inclination is to say that, absent a clear indication in Casey to the 
contrary, the undue burden analysis can at least potentially be understood 
to recalibrate the analysis that is applicable to assessing impermissible 
intrusions on the fundamental right there at issue, as opposed to departing 
from fundamental rights analysis altogether.  But I'm not sure if that's 
the best reading, so I offer it only tentatively.  Moreover, at some point 
(and we may already have reached it) I stop caring very much whether 
something is formally called a fundamental right.  As I suggested in my 
earlier post, the question at the end of the day is whether a particular 
interest gets robust constitutional protection, and just how robust that 
protection will be.  Strict scrutiny, undue burden, fundamental right, 
liberty interest:  unless I'm convinced the semantic differences are 
important in terms of outcome, I have a hard time getting worked up about 
them.  I don't mean to suggest David thinks otherwise on this point, 
though, of course, he may.


At 08:53 AM 3/16/2004 -0800, David Cruz wrote:

>On Tue, 16 Mar 2004, Trevor Morrison wrote:
>
> > [snip]  True, the Lawrence Court didn't formally rest its holding
> > on a finding of fundamental right.  But much of the opinion discusses and
> > builds on Griswold, Roe, Bowers, and Casey, all of which turned on
> > fundamental rights analysis.  Moreover, and more importantly, whether we
> > call the liberty interest recognized by Lawrence a fundamental right or
> > not, clearly it has robust constitutional protection.  [snip]
>
>I am not certain that Planned Parenthood v. Casey "turned on fundamental
>rights analysis."  As is much noted, the Casey plurality opinion (which
>appears to set forth the governing doctrine) replaces the strict scrutiny
>previously applicable to laws significantly burdening fundamental rights
>with the undue burden standard.  I'd genuinely be interested in hearing
>Trevor's take on Casey as a fundamental rights case, as this is something
>about which I'm writing.  Of course, this is a limited disagreement with
>his discussion of Lawrence, and in no means intended to differ with his
>point in the last sentence I quoted above.
>
>
>David B. Cruz
>Professor of Law
>University of Southern California Law School
>Los Angeles, CA 90089-0071
>U.S.A.
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Trevor W. Morrison
Assistant Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
607-255-9023