Equal Protection Clause Flashcards
Doctrine of Incorporation
Bill of rights apply to states through 14th Amendment Due Process
Doctrine of Reverse Incorporation
14th Amendment applies to federal government through 5th Amendment Due Process
Classification on the Face of the Law
the law in its very terms draws a distinction among people based on a particular characteristic.
Classification that are Facially Neutral
there is a discriminatory impact to the law or discriminatory effects from its administration.
If law is facially neutral
1) find discriminatory impact thru…
statistics and data
use “because of, not in spite of” Test
If law is facially neutral…
2) find discriminatory purpose thru..
Arlington Factors:
1. Historical background of the decision
2. Departures from normal procedures
3. Administrative / legislative history
§ Looking for evidence of departure from normal practices to suggest gov was acting with a purpose
* State must pass the law because of intending discrimination, not in spite of it.
§ Knowledge of foreseeable consequences is not purposeful discrimination
REMEMBER w/ facially neutral laws
§ If impact or intent is missing –> must use rational basis test.
§ If both are shown –> shift burden to govt defendant to show law would have been passed regardless.
If govt defendant fails burden –> apply level of scrutiny.
with facially neutral law…
use “because of, not in spite of” Test
what are the factors determining classification into a class–>
If more fit–>higher scrutiny review
- The extent to which the group has been singled out, suffered from a history of discrimination;
- Whether the trait bears any relationship to a person’s ability to contribute to society;
- Whether the trait is often singled out to reinforce prejudice against the group or label the group
as inferior; - Whether the group is politically powerless;
- Whether the trait shared by the group is a distinct trait or one over which its members have no
control (immutable, unalterable characteristics).
Strict Scrutiny Review
Suspect class
ELEMENT 1
- Government must demonstrate that it has a compelling interest and that its chosen means are necessary to further that interest.§ Narrowly tailored = There is no other way to achieve this purpose.
SS
ELEMENT 2
- The action is necessary if there are no other means to achieve the end that are less restrictive of the fundamental right to no less discriminatory.
The court does not permit a classification that is overinclusive, but may permit a classification that is underinclusive.
SS
ELEMENT 3
- AND Heavy presumption that the action is not justified.
* The burden is on the government to show it has a compelling objective that will be met by the classification.
IS Review
ELEMENT 1
- Government must show that the discrimination is substantially related to an important governmental interest.
IS Review
ELEMENT 2
- AND the means chosen do not need to be the least restrictive, but must be substantially related to achieving or further the government’s interest.
Govt has the burden of proof initially
IS Review
Non-Marital Children classification
○ Laws that provide a benefit to some nonmarital children, while denying the benefit to other nonmarital children, are evaluated on a case-by-case basis under intermediate scrutiny.
IS Review
Non Marital Children Scenarios
○ Valid: Illegitimate children with paternity established can inherit, but not those without established paternity.
○ Valid: Illegitimate children with formal acknowledgement by father can inherit, but not those without.
○ Valid: Illegitimate children with established paternity and fathers providing financial support can receive Social Security survivor’s benefits.
○ Invalid: Condition of disability benefit for Social Security based on whether nonmaterial children lived with father or were supported by father.
IS Review
Proving Gender Classification w/ gender neutral law
If the law is facially gender neutral, then it requires a
a) Showing of a discriminatory impact, AND
b) A discriminatory purpose/intent behind it.
i) Requires that the govt has the burden of proof that the govt action is substantially related to govt purpose
RB Review
ELEMENT 1
- Requires action or legislation be rationally related to a legitimate governmental purpose
□ Legitimate Purpose = if it advances a traditional “police” purpose: protecting safety, public health, or public morals.
■ Public safety, public health, and public morals are legitimate government purposes, but they are not the only ones.
RB Review
ELEMENT 2
- Strong presumption the law is reasonable
□ The court tolerates classifications that are both over and underinclusive.
RB Review
ELEMENT 3
- AND challenger has the burden of proof.
□ However, a law will be upheld as long as the government can identify some conceivable legitimate purpose, regardless of whether that was the government’s actual motivation.
EXCEPTION: laws will be upheld unless the govt’s action is “clearly wrong, a display or arbitrary power, not an exercise of judgement”
Activities subject to Right to Privacy
○ Marriage
○ Procreation
○ Abortion (not necessary fundamental, because of some restrictions)
○ Contraception
○ Living with one’s relatives
○ Private consensual activity
Right to die
Fundamental Rights
- The Right to Marry, and the Right to Procreate The Right to Purchase and Use Birth Control
- Rights associate w/ the right to marry:
■ Entry into marriage à part of the right to marry
■ Married couples have a right to privacy à part of the right to marry
■ Refusal of a marriage license à violation of the right to marry
- Rights associate w/ the right to marry:
- The Right to Custody of one’s own children and to raise them as one sees fit
- The Right to Medical Treatment
- Or the right to refuse medical treatment
- The Right to Freedom of Speech
- The Right to Travel Freely Among the States
- The Right to Vote
- The Right to Freedom of Association
- The Right to Freedom of Religion
Right to Equal Liberty
NON Fundamental Rights
- Public Health and Safety Measures
- Business Regulations
- Trade Practices
- Wage and Hour Regulations; Price Controls
- Bans on Discrimination Against Union or Non-Union Personnel
- Protection for sexual activity + orientation?????
- Others
Right to an education
