Constitutional Law - Individual Rights - SUBSTANTIVE DUE PROCESS, EQUAL PROTECTION

Question 1

Relationship Between Substantive Due Process and Equal Protection

(overview slide to get your bearings)

Answer 1

The Due Process Clause and the Equal Protection Clause guarantee the fairness of laws

SUBSTANTIVE DUE PROCESS guarantees that laws will be reasonable and not arbitrary, and

EQUAL PROTECTION guarantees that similarly situated persons will be treated alike

Both guarantees require the court to review the SUBSTANCE of the law rather than the PROCEDURE employed

Quick Check:
Generally where a law limits the liberty of ALL persons to engage in some activity, it is a DUE PROCESS question

Where a law treats a person or a class of persons differently from others, it is an EQUAL PROTECTION question

e.g. If a law prohibits ALL persons from purchasing contraceptive devices, you have a DUE PROCESS issue; if the law prohibits only purchases by UNMARRIED PERSONS, there is an EQUAL PROTECTION issue

Note: it is possible for both clauses to apply to same government action (since both are protecting against unfairness)

Question 2

What Standard of Review will the Court Apply under Substantive Due Process and Equal Protection?

Answer 2

The court uses STRICT SCRUTINY standard when a SUSPECT CLASSIFICATION or FUNDAMENTAL RIGHT is involved

The courts use INTERMEDIATE SCRUTINY when a classification based on GENDER or LEGITIMACY is involved

RATIONAL BASIS is used whenever the other two standards are not applicable (ie most legislation)

Question 3

Strict Scrutiny

Answer 3

STRICT SCRUTINY: a law will be upheld only if it is NECESSARY to achieve a COMPELLING or OVERRIDING government purpose

–the court will always consider whether less burdensome means for accomplishing the legislative goal are available

–most govt actions fail this test

–burden is on the GOVT to show the law is necessary

Question 4

Intermediate Scrutiny

Answer 4

a law will be upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT government purpose

Burden of proof on GOVT

Question 5

Rational Basis review

Answer 5

a law will be upheld if it is RATIONALLY RELATED to a LEGITIMATE government interest

It is difficult to fail this test, so govt action examined under this standard is upheld unless it is ARBITRARY or IRRATIONAL

Question 6

A list of rights under the FUNDAMENTAL RIGHT TO PRIVACY

Answer 6

interference with these rights demand STRICT SCRUTINY

(1) Right to Marry
(2) Right to Procreate

(3) Right to Custody of one’s children (can only be terminated by proving a compelling reason such as parental abuse or neglect)
- Note: state MAY create an irrebutable presumption that a married woman’s husnand is the father of her child

(4) The right to keep the family together - broader than the concept of parents and children, it included extended family (but ppl must be at least related)
(5) right of parents to control the upbringing of their children - e.g. ct held state could not order grandparents visitation of children when parents objected
(6) right to purchase and use CONTRACEPTIVES
(7) right to ABORTION (special “undue burden” test here though)
(8) right to engage in private CONSENSUAL SAME-SEX ACTIVITY (lawrence v. texas)

(9) right to REFUSE MEDICAL TREATMENT
- but note: there is no Constitutional Right to Physician-assisted suicide

Question 7

Due Process test for regulations/restrictions on right to ABORTION

Answer 7

(1) Prior to VIABILITY, states cannot prohibit abortions, but may REGULATE abortions so long as they do not create an UNDUE BURDEN on the ability to obtain an abortion
e. g. a requirement for a 24 hour waiting period for abortions is NOT an UNDUE BURDEN …it is constitutional
e. g. a requirement that abortions be performed by licensed physicians is NOT an UNDUE BURDEN …it is constitutional
e. g. prohibition on “Partial Birth Abortions” is NOT an UNDUE BURDEN - Constitutional
(2) AFTER VIABILITY, states may prohibit abortions unless necessary to protect the woman’s life or health

govt has no duty (is never required) to subsidize abortions to provide abortions in public hospitals

Spousal Consent and notification laws are UNCONSTITUTIONAL (ie govt can’t require a woman to get consent from, or even notify her husband before getting an abortion)

Parental Notice and Consent laws for unmarried minors
-a state MAY require parental notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interests or that she is mature enough to decide for herself

Question 8

2nd Amendment Right to BEAR ARMS

Answer 8

2nd Amendment right to BEAR ARMS - sup ct has held that individuals have a right to have weapons for self-defense, but has NOT specified the level of Scrutiny to be used

Question 9

the RIGHT to TRAVEL

Answer 9

Laws that prevent people from moving into a state must meet STRICT SCRUTINY

DURATIONAL RESIDENCY REQUIREMENTS (requiring a person to live in a jurisdiction for a specified amount of time to get a benefit) must meet STRICT SCRUTINY
-Note: Sup Ct has said that for VOTING PURPOSES, 50 days is the max allowable durational requirement

There is NO FUNDAMENTAL RIGHT to INTERNATIONAL TRAVEL, so restrictions on foreign travel need meet only RATIONAL BASIS

Question 10

The Right to Vote

Answer 10

Right to Vote is a FUNDAMENTAL RIGHT

Laws that deny some citizens the right to vote must meet STRICT SCRUTINY - e.g. poll taxes or requirements to own property in order to vote, both held unconstitutional

one-person, one-vote must be met for all state and local elections - EP clause prohibits state dilution of the right to vote, and Art I has been interpreted to place the same type of restriction on the fed govt

AT-LARGE ELECTIONS (where all voters case a vote for all officeholders) are constitutional UNLESS there is proof of a DISCRIMINATORY PURPOSE

• Note: discriminatory IMPACT is NOT ENOUGH
  e. g. mobile Alamaba, didn’t divide city up into 3 districts, instead had at-large election system for all 3 seats on city counsel - Mobile was 2/3 white so never in 20th century was Afr. Am. elected to city counsil - sup ct said ok, discriminatory impact not enough

use of RACE in drawing election district lines (racial gerrymandering) must meet STRICT SCRUTINY

Counting Uncounted Votes without standards in a presidential election violates EP (Bush v. Gore)

Question 11

Fundamental Right to Education?

Answer 11

THERE IS NO Fundamental Right to Education under DP of the United States Constitution

Question 12

EQUAL PROTECTION Clause

Answer 12

Equal Protection Clause of 14th Amendment only applies to state and local governments. It has no counterpart in the constitution applicable to the FEDERAL GOVERNMENT, but it has been implied to the federal government under the DUE PROCESS CLAUSE OF THE 5th Amendment

Whenever the government draws a DISTINCTION AMONG PEOPLE there is a basis for an equal protection challenge

Question 13

Standards of scrutiny applied when examining governmental action involving Classifications of Persons under Equal Protection

Answer 13

If a SUSPECT CLASSIFICATION or FUNDAMENTAL RIGHT is involved, STRICT SCRUTINY applies

If a QUASI-SUSPECT Classification is involved, the court will likely require the govt to prove that the action is SUBSTANTIALLY RELATED to an IMPORTANT Govt interest - ie INTERMEDIATE SCRUTINY is involved

Any other Classification, RATIONAL BASIS review

Question 14

Approach to Equal Protection Questions

Answer 14

(1) What is the CLASSIFICATION?
(2) What level of Scrutiny should be applied?
(3) Does this law meet the level of scrutiny?

Question 15

What level of scrutiny is applied to classifications based on RACE, ALIENAGE and NATIONAL ORIGIN?

Answer 15

Strict Scrutiny

Question 16

How is the existence of a racial classification proven?

Answer 16

TWO alternative ways
(1) The classification exists on the FACE of the law (Facially Discriminatory)

(2) if law is race-neutral on its face, must show
(a) Discriminatory Impact
(b) Discriminatory Intent
- -e.g. had to pass a test to become police officer in DC, stats showed blacks failed more than whites, had impact but not intent, upheld under EP (didnt trigger strict scrutiny)

Question 17

How are Racial Classifications BENEFITING Minorities treated?

Answer 17

Strict Scrutiny Applies

Numerical Set-Asides require CLEAR proof of past discrimination
-courts are hostile to QUOTAS or set-asides

Education institutions MAY USE RACE as one factor in admission decisions to benefit minorities and enhance diversity
e.g. U of Mich. use of race as a factor - ct held universities have a COMPELLING interest in DIVERSITY so can use it as one factor among many, but may not add points to applications admission score solely on race

Public School systems may not use race as a factor in assigning students to school unless STRICT SCRUTINY is met

Question 18

Gender Classifications

Answer 18

Gender Classifications get INTERMEDIATE SCRUTINY

Sex-based discrimination and discrimination based on gender can only be allowed if there is an EXCEEDINGLY PERSUASIVE JUSTIFICATION

Question 19

How is a Gender Classification Proven?

Answer 19

Same as with a race classification (good review)

2 ways

(1) classification exists on the face of the law
(2) law is facially gender-neutral, then must show
(a) discriminatory impact
(b) discriminatory intent

Important application: discriminatory use of peremptory challenged based on gender denies equal protection

Question 20

How are gender classifications BENEFITING or DISADVANTAGING women treated?

Answer 20

They are subject to INTERMEDIATE SCRUTINY

BUT - SPECIAL RULES for how courts treat gender classifications BENEFITING WOMEN

(a) Gender Classifications benefiting women that are based on ROLE STEREOTYPES will not be allowed
- —e.g. AL - A woman can get alimony, man cannot - ct said this is based on stereotype that women are dependent on men so unconstitutional
- —-e.g.2 - law state that if woman’s husband died she gets full survivorship benefits but if WIFE dies man can only get if can prove he was dependent on her - held UNCONSTITUTIONAL

(b) Gender Classifications benefiting women that are designed to REMEDY PAST DISCRIMINATION or DIFFERENCES in opportunity WILL BE allowed
- —-e.g. Social Security admin used formula that gave greater benefits to women to compensate for history of past depressed wages for women - held constitutional

Question 21

ALIENAGE Classifications

Answer 21

Laws that discriminate against non-US citizens

Generally, laws that discriminate against non-citizens must meet STRICT SCRUTINY
-e.g. “only US citizens can receive welfare benefits from the state - sup ct held UNCONSTITUTIONAL under strict scrutiny

But certain privileges are reserved just for citizens
THESE INCLUDE:
(1) VOTING
(2) serving on a JURY
(3) being a POLICE OFFICER
(4) being a TEACHER
(5) being a PROBATION OFFICER

Only a RATIONAL BASIS is used for these

BUT Exception to this Exception – law saying NOTARY PUBLICS must be US citizens was subject to STRICT SCRUTINY and held unconstitutional

Question 22

Level of Scrutiny for Undocumented Alien Children?

Answer 22

It appears to be INTERMEDIATE SCRUTINY

TX law that said children of citizens and undocumented aliens get free public education, but children of UNDOCUMENTED aliens had to pay for their public education – Sup Ct. said UNCONSTITUTIONAL (analysis looked like intermediate)

Question 23

Discrimination against NON-MARITAL Children (so called “legitimacy classifications”)

Answer 23

Intermediate Scrutiny

Laws that deny a benefit to all non-marital children, but grant it to all marital children are UNCONSTITUTIONAL

e.g. law that said only marital children could inherit from their fathers (no inheritance for nonmarital children) – ct used INTERMEDIATE SCRUTINY and said unconstitutional

Question 24

Rational Basis Review for all other types of discrimination under constitution

Answer 24

All of the following receive Rational Basis Review

Age Discrimination

Disability Discrimination
-Tx tried to prevent home for mentally disabled, lost under rational basis

Wealth Discrimination - poverty not a suspect class

Government Economic Regulation
-e.g. New Orleans hot dog vendor - to be a vendor had to have worked in french qtr for 8 years - rational basis, govt won

Sexual Orientation Discrimination - Ct struck down CO attempt to pass laws repealing any protections against discriminating against homosexuals and forbidding any further protection