Equal Protection

Question 1

For strict and intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent may be shown by:

Answer 1

(1) A law that is discriminatory on its face (i.e., facial discrimination)
(2) A discriminatory application of a facially neutral law
(3) A facially neutral law with a disparate impact on a protected class of people

With (2) and (3), a discriminatory application or effect alone is NOT enough. The legislature’s discriminatory intent must also be shown (e.g., by evidence of a history of discrimination).

Question 2

What are the 3 suspect classifications that trigger strict scrutiny?

Answer 2

(1) Race
(2) National origin
(3) Alienage (at the state and local level)

Question 3

True or false: federal alienage classifications are subject to strict scrutiny. Explain.

Answer 3

False. Because of Congress’s plenary power over aliens, federal alienage classifications are not subject to strict scrutiny. Instead, rational basis review applies, and such classifications will be held valid if they are not arbitrary and/or unreasonable.

Question 4

Generally, state and local laws on alienage are suspect classifications subject to strict scrutiny. What is the one exception to the general rule?

Answer 4

Any law discriminating against alien participation in state government (e.g., voting, jury service, elective office) is subject to rational basis review rather than strict scrutiny.

Also, rational basis is used for state and local laws limiting certain non-elective offices involving important public policy (e.g., police officers, primary and secondary schoolteachers).

Question 5

True or false: undocumented aliens are considered on equal footing with other kinds of aliens (e.g., permanent residents) for the purposes of Equal Protection analyses.

Answer 5

False. Undocumented aliens are not a suspect class, and thus any law (state or federal) discriminating against undocumented aliens is subject to rational basis review.

EXCEPTION: Children of undocumented aliens may not be denied free public education, though the standard of review is unclear in this case.

Question 6

True or false: If the government’s only interest in denying a benefit to or imposing a burden on a group of people is a dislike of them, the classification will not meet rational basis review.

Answer 6

True

Question 7

What are the 2 quasi-suspect classifications subject to intermediate scrutiny?

Answer 7

(1) Gender

2) Legitimacy (nonmarital children