Substantive Due Process and Equal Protection

Question 1

When is something an SDP issue versus a EP issue?

Answer 1

SDP: the law imposes the same limit on everyone
EP: the law treats some people differently than others

Question 2

Define strict scrutiny review.

Answer 2

State act must be necessary to achieve a compelling or overriding government interest, and narrowly tailored to achieving that interest with no less restrictive means available. Gov’t has burden of proof.

Question 3

Define intermediate scrutiny review.

Answer 3

State act must be substantially related to achieve an important or significant government interest, and narrowly tailored to achieving that interest (not least restrictive). Gov’t has burden of proof.

Question 4

Define rational basis review.

Answer 4

State act must be rationally related to a legitimate government interest. It must not be irrational or arbitrary. Claimant has burden of proof.

Question 5

For equal protection, what is the class warranting strict scrutiny called? What is in the class?

Answer 5

Suspect classes. Race, national origin, and alienage.

Question 6

When is regulation treating people differently on the basis of alienage not subject to strict scrutiny? What scrutiny is it subject to?

Answer 6

When it is a federal alienage regulation. This warrants rational basis review. OR
When it is a state alienage regulation but the regulation addresses participation in the democratic process (voting, jury service, public school teacher, police officers etc.) This warrants rational basis review.

Question 7

For substantive due process, what are the fundamental rights warranting strict scrutiny?

Answer 7

marriage, procreation, contraception, childrearing, living with extended family, interstate travel, voting.

Question 8

For substantive due process, what level of scrutiny is warranted by non-fundamental rights?

Answer 8

rational basis review

Question 9

What are the three ways a state’s discriminatory intent can be shown?

Answer 9

1) A law is facially discriminatory
2) The law is being applied discriminatorily
3) There is discriminatory motive behind the law

Question 10

T/F: for the purposes of subjecting a law to strict or intermediate scrutiny under equal protection, it is enough to show that a law has a discriminatory effect.

Answer 10

False. Discriminatory intent must also be shown.

Question 11

T/F: government action that favors racial minorities is subject to the same scrutiny as is government action that discriminates against racial minorities.

Answer 11

True

Question 12

When can the government act to influence the racial makeup of schools? Why?

Answer 12

To remedy past injustices and discrimination such as segregation, because government has a compelling state interest in doing so.

Question 13

T/F: it is never appropriate for the government to consider racial diversity in regulating school admission policies because of strict scrutiny. Why?

Answer 13

False. Governments may regulate on the basis of race, but diversity cannot be the predominant or the sole dispositive factor. Diversity can be one part of a holistic criteria.
Also, if the law is narrowly tailored, then the law may survive strict scrutiny review.

Question 14

For equal protection, what is the class warranting intermediate scrutiny called? What is in the class?

Answer 14

Quasi-suspect class. Gender and non-marital children.

Question 15

T/F: a law that favors women by entitling only women but not men to some benefit often survives intermediate scrutiny.

Answer 15

False. Laws that perpetuate the stereotype that women are more economically dependent on others are often invalid under intermediate scrutiny.

Question 16

What is the standard of review for abortion laws?

Answer 16

Pre-viability: the law must not impose an undue burden on the woman’s right to an abortion.

Post-viability: states may regulate abortion, including prohibiting it unless the woman’s health or safety is threatened.

Question 17

T/F: requiring a woman to notify her spouse before getting an abortion is an undue burden.

Answer 17

True.

Question 18

T/F: requiring physicians performing abortions to have admitting privileges at nearby hospitals is NOT an undue burden.

Answer 18

False. Requiring physicians performing abortions to have admitting privileges at nearby hospitals IS an undue burden.

Question 19

T/F: requiring doctors to give a woman relevant information to give informed consent is an undue burden.

Answer 19

False. No undue burden.

Question 20

T/F: requiring a 24 hour waiting period before seeking and getting an abortion is an undue burden.

Answer 20

False. No undue burden.

Question 21

T/F: requiring parental consent or parental notice for minors to obtain an abortion is never an undue burden.

Answer 21

False. Requiring parental consent/notice is an undue burden, unless there is a judicial bypass option whereby the minor can seek court approval.

Question 22

T/F: requiring that only licensed physicians can perform abortions is not an undue burden.

Answer 22

True.

Question 23

T/F: prohibiting partial-birth abortions when other types of abortion are available is not an undue burden.

Answer 23

True.

Question 24

What types of restrictions on the right to vote are usually valid?

Answer 24

Reasonable residency requirements (~30 days), age, citizenship.

Question 25

When does the one person one vote principle apply? When does it never apply?

Answer 25

Applies to popular elections that select representatives from individual districts to a governmental body.

It does not apply to appointed officials or elections at large (where representatives represent everyone and are chosen by everyone across all districts).

Question 26

For congressional elections, how does the one person one vote principle work?

Answer 26

The population of voting districts MUST be as close to exact mathematical equality as possible.

Question 27

T/F: when apportioning representatives among states, Congress must strive for exact mathematical equality.

Answer 27

False. As long as Congress apportions representatives to states in good faith, that is good enough.

Question 28

For state elections, how does the one person one vote principle work?

Answer 28

The population of voting districts must be similar but some variance is permitted as long as it is not unjustifiably large.

Question 29

The right to interstate travel includes your right to move freely between states and __________?

Answer 29

The right to be treated equally once you move to a new state.

Question 30

T/F: a state may require that you live in a state for a certain period before being eligible for certain benefits (like state-subsidized medical care). Why?

Answer 30

False. Generally, a state may not impose residency requirements on new residents wishing to receive benefits that are otherwise provided to the state’s residents.

Right to be treated equally once you move to a new state is protected as the fundamental right to interstate travel.