Wednesday, November 02, 2005

Right To Privacy – Part 3

“I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.”
-- Martin Luther King Jr.
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Legal Argument:

C. Standard of Analysis—Strict Scrutiny

The Right of Privacy having attached to the alimony provisions, § 61.08 et al. Fla. Stat., they are presumptively unconstitutional, and require strict scrutiny review.

N. Fla.. Women’s Health, 866 So.2d, n16 reiterates the oft cited standard of analysis that must be applied when a challenge is raised that a statute infringes a fundamental right, here the Right of Privacy,

“Under ‘strict’ scrutiny, which applies inter alia to certain classifications and fundamental rights, a court must review the legislation to ensure that it furthers a compelling State interest through the least intrusive means. The legislation is presumptively unconstitutional. The standard of proof is as follows: the State must prove that the legislation furthers a compelling State interest through the least intrusive means. See generally In re T.W., 551So. 2d 1186, 1193 (Fla. 1989).”

Florida High School Activities Ass'n. v. Thomas, 434 So. 2d 306, 308 (Fla. 1983) (stating that the strict scrutiny is a "harsh standard [which] imposes a heavy burden of justification upon the state")
N. Fla.. Women’s Health, 866 So.2d, 647 and n75 says,

“Moreover, under strict scrutiny review, the State cannot meet
its heavy burden simply by stating that the interests are compelling without proof from the State that the compelling interests are in fact furthered by the statutory intrusion into the protected fundamental rights, and that the statutory intrusion is the least intrusive means to achieve that goal.” [Emphasis added]

“n75 . Although case law from this Court applying the strict scrutiny standard articulates the first prong of the strict scrutiny review as a single inquiry, see, e.g., T.W., 551 So. 2d at 1193; Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), in reality the first prong involves two interrelated inquiries: (a) whether the State has carried its "heavy" burden of establishing a compelling interest; and (b) whether the State has carried its "heavy" burden of establishing that the statutory scheme in fact serves or furthers that compelling state interest.”

And other quotes in N. Fla. Women’s Health 866 So.2d, 647,

“We have found no cases in which this Court applied . . . a narrowing construction to a statute challenged solely on the basis that its clear provisions violate a substantive constitutional right. The likely reason for this result is that the constitutionality of the statute, depending on the substantive right involved, depends solely on whether the statute passes the . . . strict scrutiny test[]. . . . Such a statute is unconstitutional under any circumstance unless the State satisfies its burden of establishing a compelling state interest.” Richardson v. Richardson, 766 So. 2d 1036, 1041 (Fla. 2000)

“Just as our obligation to exercise restraint when reviewing statutes is paramount under rational basis review, our obligation to protect fundamental rights is paramount under strict scrutiny. Indeed, the United States Supreme Court has specifically held that ‘when we are reviewing [**93] statutes which deny some residents [a fundamental right], the general presumption of
constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a 'rational basis' . . . are not applicable.’” Kramer v. Union Free School District, 395 U.S. 621, 627-28, 23 L. Ed. 2d 583, 89 S. Ct. 1886 (1969).

“The very basis of a strict scrutiny analysis is that this is the one level of review that cannot allow for deference. This Court is ‘bound’ to construe constitutional rights, which ‘operate[] in favor of the individual, against government,’ so as to ‘achieve the primary goal of individual freedom and autonomy.’” Traylor v. State, 596 So. 2d 957, 963 (Fla. 1992).

GOOD READS:
* "Those Whom God Hath Joined Together Let No Man Put Asunder"
* PBS Portrays Known Child Abuser as Hero. An example of how myths are perpetuated by media distortion.

LEGAL INFORMATION AND RESEARCH CORNER:
* List of states Attorney Generals. After selecting your state, you can then search on a subject to see what opinions the AG has issued related to the statutes. These are citable in your motions and pleadings.

* EXAMPLES SHOWING THAT JUDGES CAN MAKE MISTAKES TOO:
* Judicial Accountability Reform Needed. Follow the link in the article for more behind the reform movement.
* Olive Town Justices Censured For Refusing To Enforce Speed Limit.

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