Equal Protection Flashcards
What is the source of state equal protection laws?
The 14th Amendment.
What is the source of Federal equal protection laws?
The 5th Amendment.
What does equal protection require from the government?
The government must justify its actions when it discriminates.
What are the steps in analyzing an equal protection question?
Step 1. Identify the status of the actor descriminating (government v. private)
Step 2. If government, identify the type of discrimination. If private, equal protection does not apply
Step 3. Identify and apply the level of scrutiny attached to that discrimination
What level of scrutiny is applied when a law is discriminatory because of a disparate impact?
Rational Basis Review
What must a plaintiff show to prevail under rational basis review?
The plaintiff must show that what government has done is not rationally related to any legitimate government interest.
When will a law with a disparate impact not recieve rational basis review?
- When an employer intended to bring about disparate impact
OR
- When the law is enforced in a discriminatory manner
What is the default level of scrutiny applied to any law?
Rational Basis Review
List the types of discrimination that are recieve heightened scrutiny levels.
Discrimination based upon:
- Sex
- Illegitimacy of birth
- Race
- U.S. citizenship if done by states
What does intermediate scrutiny require?
The government must show the law has a substantialrelation to animportant government interest, and
that interest has to be actual reason for the law.
Which types of discrimination recieve intermediate scrutiny?
- Gender
And
- Illegitimacy of birth
What does strict scrutiny require?
The government must show the law serves a compellinginterest (very important), that the discrimination isnecessary to meet the interest (no alternative means), and that the interest is the actual reason for the law.
List the types of discrimination that recieve strict scrutiny.
- Race
And
- U.S. citizenship, if done by states
If a law recieves rational basis review, who generally wins? What is the exception?
The Government will generally prevail under rational basis review; unless the discrimination is based upon sexual orientation.
Define de jure segregation.
Segregation imposed by law. It will almost always be unconstitutional.
Define de facto segregation.
Segregation that is not legally required but happens by private choice. There is no Constitutional issue because there is no state action
More Info: De Facto Segregation
When will racial discrimination pass strict scrutiny?
- When police are responding to race riots
Or
- Affirmative action
What are the two compelling interest the government has in affirmative action?
- Remedying state’s own past discrimination (the benefits should go as closely as possible to the people discriminated)
And
- Promoting diversity in higher education (race can be one factor among many with no fixed weight)
What level of scrutiny will a state’s discrimination based upon alienage recieve?
Strict Scrutiny
How can states treat non-citizens differently?
States can exclude non-citizens from jobs related to state governance (e.g. police officers, government officials, public school teachers).
What test is applied when states discriminate against illegal aliens?
Illegal aliens are not protected and discrimination against them will recieve rational basis review.
More Info: Alienage Classifications
What test is applied when states discriminate against the children of illegal aliens children?
Intermediate Scrutiny
If there is a question with discrimination based upon illegitimacy on the MBE, it will likely be held. . .
Unconstitutional because it serves no important government interest.
Laws that treat men and women differently must meet what test?
Intermediate Scrutiny
List four examples of when treating men and women differently is unconstitutional.
Gender discrimination in:
- Estate administration
- Military housing
- Alimony payments
- Drinking age (cannot be higher for men than women)
List two constitutional examples of gender discrimination.
- The draft: it is okay to require men to register but not women
And
- Statutory rape: age of consent higher for women than men
What is the level of scrutiny used for gender based affirmative action?
Intermediate Scrutiny
What is the general rule for gender based affirmative action?
Gender based affirmative action will be upheld if it is making up for the past mistakes of society.
The right to vote in state elections comes from where?
The Equal Protection Clause of the 14th Amendment.
More Info: EPC of the 14th Amendment
When does the right to vote on the basis of “one person, one vote” not apply?
In limited-purpose elections.
What is the test for voting registration, time, place, and manner regulations?
Rational basis + no undue burden
Is there a constitutionally protected privacy right to party affiliation?
No.
Privileges and Immunities under the 14th Amendment protect what right?
Interstate travel when a citizen is to become a resident of a new state
Privileges and Immunities under Article IV, Section 2 of the Constitution protects what right?
Interstate travel when an out of state visitors is only visiting another state
More Info: Privileges and Immunities Clause, Article IV, Section 2
List four examples of unconstitutional non-resident discrimination.
- Charging higher fee for commercial licenses for non-residents
- Commuter taxes applied only to non-residents
- Limiting abortions to only local residents
- Mandating that employers only hire state-residents
List two examples of constitutional non-resident discrimination.
- Charging more for recreational licenses (hunting or fishing)
- Treating non-residents differently to preserve in-state natural resources
What is the test applied to non-resident discrimination?
There must be a substantial connection between the discrimination and a substantial state interest.
More Info: The Privileges and Immunities Clause
What does the Contract Clause of the Constitution apply to?
A state law that substantially impairs existing contract rights
When will a state law that substantially impairs an existing contract right be held valid?
- The law is necessary to achieve an important and legitimate public interest
- The regulation is reasonable
And
- The regulation is a narrowly tailored means of promoting that interest
* Generally*, the government passes this test, unless it is trying to get out of its own contracts.
What does the ban on ex post facto laws prevent?
Punishment for past crimes under a new standard.
List four examples of when a state statute violates the ex post facto clause.
When the government retoractively tries to:
- Create a new crime and punish people for it
- Assigns more punishment to a past crime
- Reduce the evidentiary burden required for conviction
And
- Rehabilitate the statute of limitations after it has expired
What are the elements for bills of attainder?
Legislation that inflicts punishment without a trial and singles out named individuals or a designated group for past conduct.
What is the distinction between ex post facto laws and bills of attainder?
Ex post facto laws do not single people out and the affected parties are only punished after a trial.
What is the test applied to laws departing from “one person, one vote?”
Strict Scrutiny
