Equal Protection Clause

Question 1

Doctrine of Incorporation

Answer 1

Bill of rights apply to states through 14th Amendment Due Process

Question 2

Doctrine of Reverse Incorporation

Answer 2

14th Amendment applies to federal government through 5th Amendment Due Process

Question 3

Classification on the Face of the Law

Answer 3

the law in its very terms draws a distinction among people based on a particular characteristic.

Question 4

Classification that are Facially Neutral

Answer 4

there is a discriminatory impact to the law or discriminatory effects from its administration.

Question 5

If law is facially neutral

1) find discriminatory impact thru…

Answer 5

statistics and data

use “because of, not in spite of” Test

Question 6

If law is facially neutral…

2) find discriminatory purpose thru..

Answer 6

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

Question 7

REMEMBER w/ facially neutral laws

Answer 7

§ 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.

Question 8

with facially neutral law…

Answer 8

use “because of, not in spite of” Test

Question 9

what are the factors determining classification into a class–>

If more fit–>higher scrutiny review

Answer 9

1. The extent to which the group has been singled out, suffered from a history of discrimination;
   
   2. Whether the trait bears any relationship to a person’s ability to contribute to society;
   3. Whether the trait is often singled out to reinforce prejudice against the group or label the group
      as inferior;
   4. Whether the group is politically powerless;
   5. Whether the trait shared by the group is a distinct trait or one over which its members have no
      control (immutable, unalterable characteristics).

Question 10

Strict Scrutiny Review

Suspect class

ELEMENT 1

Answer 10

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.

Question 11

SS

ELEMENT 2

Answer 11

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.

Question 12

SS

ELEMENT 3

Answer 12

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.

Question 13

IS Review

ELEMENT 1

Answer 13

1. Government must show that the discrimination is substantially related to an important governmental interest.

Question 14

IS Review

ELEMENT 2

Answer 14

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

Question 15

IS Review

Non-Marital Children classification

Answer 15

○ 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.

Question 16

IS Review

Non Marital Children Scenarios

Answer 16

○ 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.

Question 17

IS Review

Proving Gender Classification w/ gender neutral law

Answer 17

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

Question 18

RB Review

ELEMENT 1

Answer 18

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.

Question 19

RB Review

ELEMENT 2

Answer 19

2. Strong presumption the law is reasonable
   □ The court tolerates classifications that are both over and underinclusive.

Question 20

RB Review

ELEMENT 3

Answer 20

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”

Question 21

Activities subject to Right to Privacy

Answer 21

○ Marriage
○ Procreation
○ Abortion (not necessary fundamental, because of some restrictions)
○ Contraception
○ Living with one’s relatives
○ Private consensual activity
Right to die

Question 22

Fundamental Rights

Answer 22

• 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
• 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

Question 23

NON Fundamental Rights

Answer 23

• 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