Equal Protection

Question 1

What is the source of state equal protection laws?

Answer 1

The 14th Amendment.

Question 2

What is the source of Federal equal protection laws?

Answer 2

The 5th Amendment.

Question 3

What does equal protection require from government?

Answer 3

The government to justify its actions when it discriminates.

Question 4

What are the steps in analyzing an equal protection question?

Answer 4

Step 1. Identify the status of the actor descriminating (government v. private);

Step 2. If government, identify the type of discrimination;

Step 3. Identify and apply the level of scrutiny attached to that discrimination.

Question 5

What level of scrutiny is applied when a law is discriminatory because of the disparate impact?

Answer 5

Rational Basis Review

Question 6

What must a π show to prevail under rational basis review?

Answer 6

π must show that what government has done is not rationally related to any legitimate interest.

Question 7

When will a law with disparate impact not recieve rational basis review?

Answer 7

1. When employer intended to bring about disparate impact; or, 2. When the law enforced in a discriminatory manner.

Question 8

What is the default scrutiny applied to any law?

Answer 8

Rational Basis Review

Question 9

List the types of discrimination that are scrutinized beyond rationale basis review.

Answer 9

Discrimination based upon:

1. Sex;
2. Illegitimacy of birth:
3. Race:
4. U.S. citizenship if done by states.

Question 10

What does intermediate scrutiny require?

Answer 10

The government must show the law has a+

Substantial relation+

To an important government interest+

The interest has to be actual reason for the law.

Question 11

Which types of discrimination recieve intermediate scrutiny?

Answer 11

1. Gender; and,
2. Illegitimacy of birth.

Question 12

What does strict scrutiny require?

Answer 12

The government must show the law serves a+

Compelling interest (very important)+

Discrimination is necessary to meet the interest(no alternative means)+

The interest has to be actual reason for the law.

Question 13

List the types of discrimination that recieve strict scrutiny.

Answer 13

1. Race;
2. U.S. citizenship, if done by states.

Question 14

If a law recieves rational basis review, who generally wins? What is the exception?

Answer 14

The Government will generally prevail under rational basis review; unless the discrimination is based upon sexual orientation.

Question 15

Define de jure segregation.

Answer 15

Segregation imposed by law. It will almost always be unconstitutional.

Question 16

Define de facto segregation.

Answer 16

Segregation that is not legally required but happens by private choice. There is no Constitutional issue because there is no state action

Question 17

When will racial discrimination pass strict scrutiny?

Answer 17

1. When police are responding to race riots; or,
2. Affirmative action.

Question 18

What are the two compelling interest the government has in affirmative action?

Answer 18

1. Remedying state’s own past discrimination (the benefits should go as closely as possible to the people discriminated); and,
2. Promoting diversity in higher education (race can be one factor among many with no fixed weight).

Question 19

What level of scrutiny will a state’s discrimination based upon alienage recieve?

Answer 19

Strict Scrutiny

Question 20

How can states treat non-citizens differently?

Answer 20

States can exclude from jobs related to state governance (e.g. police officers, government officials, public school teachers).

Question 21

What test is applied when states discriminate against illegal aliens?

Answer 21

Illegal aliens are not protected and discrimination against them will recieve rational basis review.

Question 22

What test is applied when states discriminate against the children of illegal aliens children?

Answer 22

Intermediate Scrutiny

Question 23

If there is a question with discrimination based upon illegitimacy on the MBE, it will likely be held. . .

Answer 23

Unconstitutional because it serves no important government interest.

Question 24

Laws that treat men and women differently must meet what test?

Answer 24

Intermediate Scrutiny

Question 25

List four examples of when treating men and women differently is unconstitutional.

Answer 25

Gender discrimination in:

1. Estate administration;
2. Military housing;
3. Alimony payments; or,
4. Drinking age (cannot be higher for men than women).

Question 26

List two constitutional examples of gender discrimination.

Answer 26

1. The draft: it is okay to require men to register but not women; and,
2. Statutory rape: age of consent higher for women than men.

Question 27

What is the level of scrutiny for gender based affirmative action.

Answer 27

Intermediate Scrutiny

Question 28

What is the general rule for gender based affirmative action?

Answer 28

Sex based affirmative action will be upheld if it is making up for the past mistakes of society.

Question 29

The right to vote in state elections comes from where?

Answer 29

The equal protection clause of the 14th Amendment.

Question 30

When does the right to vote on the basis of “one person, one vote” not apply?

Answer 30

In limited-purpose elections.

Question 31

What is the test for voting registration, time, place, manner requirements?

Answer 31

Rational basis + no undue burden.

Question 32

Is there a constitutionally protected privacy right to party affiliation?

Answer 32

No.

Question 33

Privileges and Immunities under the 14th Amendment protects what right?

Answer 33

Interstate travel when a citizen is to become a resident of a new state. ≠corporations

Question 34

Privileges and Immunities under Article IV, Section 2 protects what right?

Answer 34

Interstate travel when an out of state visitors is only visiting another state.

≠ apply to corporations

Question 35

List four examples of unconstitutional forms of non-resident discrimination.

Answer 35

1. Charging higher fee for commercial licenses for non-residents;
2. Commuter taxes applied only to non-residents;
3. Limiting abortions to only local residents; and,
4. Mandating that employers only hire state-residents.

Question 36

List two examples of constitutional forms of non-resident discrimination.

Answer 36

1. Charging more for recreational licenses (hunting or fishing);
2. Treating non-residents differently to preserve in-state natural resources.

Question 37

What is the test applied to non-resident discrimination?

Answer 37

There must be a substantial connection between the discrimination and a substantial state interest.

Question 38

What does the contract clause applie to?

Answer 38

A state law that substantially impairs existing contract right.

Question 39

When will a state law that substantially impairs an existing contract right be valid?

Answer 39

1. the law is necessary to achieve an important and legitimate public interest;
2. the regulation is reasonable;
3. the regulation is a narrowly tailored means of promoting that interest.

Generally, the government passes this test, unless they are trying to get out of its own contracts.

Question 40

What do ex post facto laws prevent?

Answer 40

Punishment for past crimes under a new standard.

Question 41

List four examples of when a state statute violates the ex post facto clause.

Answer 41

When the government retoractively tries to:

1. Create a new crime and punish people for it;
2. Assigns more punishment;
3. Reduce the evidentiary burden required for conviction; and,
4. Rehabilitate the statute of limitations after it has expired.

Question 42

What are the elements for bills of attainder?

Answer 42

Legislation that+

Inflicts punishment+

Without a trial+

Singles out named individuals or a designated group+

For past conduct.

Question 43

What is the distinction between ex post facto and bill of attainder?

Answer 43

Ex post facto does not single people out and affected parties are only punished after a trial.

Question 44

What is the test applied to laws departing from “one person, one vote?”

Answer 44

Strict Scrutiny