norml21 - Page 59
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Public Workg__ v. M__ 330 U.S. 75, 67 S. Ct. 550 (1946).
2. Second, it must be shown that the activity asserted as a
protected right neither infringes upon another's asserted or
constitutionally protected right; nor endangers the evident good
of the community° The fact that it is a personal right which
only the minority upholds as essential ne:_ther denies nor
disparages Ninth Amendment protection° In analyzing the "evident
good of the community _' the following sub-questions must be
answered:
a. Does the challenged regulation affect the behavior of
competent adults?
bo Does the law limit the ability of the individual to
shape his conscience or plan his lifestyle?
c. Does the behavior which the law attempts to modify affect
persons other than the actor?
Third, once a prima facie showing is made that the asserted
right is an V'individual liberty," not an '_economic liberty, _' and
that the liberty espoused does not interfere with the rights of
another or do harm to another person_ the presumption of
constitutionality of the statute falls and the burden then shifts
to the state to prove that infringement of the asserted Ninth
Amendment rights by applying criminal sanctions, is justified by
a compelling state interest° As the Supreme Court has noted in a
similar context:
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