Equal protections Flashcards
Privileges or Immunities
Fourteenth Amendment Privileges or Immunities has no doctrinal weight, in contrast to Article IV Privileges and Immunities.
Where it applies, 14A Privileges or Immunities only protects U.S. citizens from infringement by the states upon the privileges or immunities of national citizenship.
Fifth Amendment Due Process: Equal Protections
Whereas Fourteenth Amendment Equal Protections applies to states and localities, EP is applied to the federal government via the Fifth Amendment Due Process Clause.
Race, ethnicity, or national origin
These are suspect classifications and trigger strict scrutiny analysis under Equal Protections.
A law is a suspect racial classification only if plaintiffs show it has a discriminatory purpose, i.e., it is not enough to show a disproportionate impact.
Race, ethnicity, or national origin: discriminatory purpose
For constitutional purposes, a law is a racial classification only if the plaintiffs show that it has a discriminatory purpose.
Plaintiffs can establish a discriminatory purpose by:
- Showing that it is explicit on the face of the statute;
- Proving a history of discriminatory application; or
- Using extrinsic evidence about the purposes of those who passed the law.
For example: de jure segregation is unconstitutional whereas de facto segregation generally is not.
Race, ethnicity, or national origin: affirmative action
Affirmative action triggers strict scrutiny and requires a compelling interest.
General societal discrimination does not justify affirmative action.
Affirmative action is valid if:
- It specifically corrects past discrimination by the specific department or agency now engaged in affirmative action;
- It is necessary to achieve a diverse student body and diversity that is essential to achieving a diverse class. Racial preferences must be necessary, holistic, and flexible; neither quotas nor separate admissions tracks or procedures are allowed.
Preferential admissions are not allowed for secondary schools.
Legitimacy
Laws conditioned on whether one’s parents were married at the time of one’s birth are almost always invalid, especially if punitive in nature.
Because legitimacy is a quasi-suspect classification, it draws intermediate scrutiny.
Gender
Discrimination based on gender is “quasi-suspect” and subject to the intermediate scrutiny test, which states that a law must be substantially related to an important government interest in order to be valid.
Gender classifications are almost always invalid, except in narrow circumstances meeting the “exceedingly persuasive justification” standard, e.g.:
- Statutory rape laws, which as a matter of history can be gender-specific;
- The draft.
Age
Age triggers rational basis review because it is neither a suspect nor quasi-suspect classification.
Age discrimination in employment is barred by statute.
Wealth
Although the government has to waive filing fees for indigents when charging the fees would deny a fundamental right—e.g., for divorce (marriage being a fundamental right), transcripts for appeal of a criminal conviction (appeal being a fundamental right), and transcripts for appeal of termination of parental rights—wealth is not a suspect or quasi-suspect classification.
Persons convicted of felonies
Persons convicted of felonies are not a protected class; accordingly, only the rational basis test would apply to restrictions on their rights.
For example, pursuant to Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison.
Gender: benign discrimination
Benign discrimination is a form of affirmative action granting beneficial treatment to one sex over another—such as tax exemptions, increased social security benefits, and increased protection from mandatory armed forces discharge—in order to provide a remedy for past gender-based discrimination.
