Substantive Due Process and Equal Protection

Question 1

Strict Scrutiny

Answer 1

Gov’t must prove that the law is NECESSARY to achieve a COMPELLING state interest.

Applies to laws:

• affecting FUNDAMENTAL rights (privacy. interstate travel, voting, and First Amendment rights); Or
• Suspect classifications (race, national original, alienage)

Question 2

Intermediate Scrutiny

Answer 2

Govt must show that law is SUBSTANTIALLY RELATED to an IMPORTANT govt interest.

Applies to QUASI-SUSPECT classifications (gender and legitimacy)

Question 3

Rational Basis

Answer 3

Challenger must prove that law is not RATIONALLY RELATED to a LEGITIMATE govt interest (any legal purpose- laws that are not arbitrary or irrational)

Applies to non-suspect classifications:
- age, disability, poverty

Question 4

Substantive Due Process

Answer 4

Protects rights- as they apply to ALL persons.

Feds: V Amend; States: XIV Amend

Law affecting fundamental right: Strict Scrutiny
No fundamental rights affected: Rational Basis

Question 5

Equal Protection

Answer 5

Provides protection if a law treats a group of persons (or even a class of one) differently.

Feds: V Amend (due process clause); States: XIV Amend

Must demonstrate INTENT of govt to discriminate for strict or intermediate scrutiny to apply. May be shown by:

1) Discriminatory on its FACE
2) DISCRIMINATORY APPLICATION of facially neutral law
3) DISCRIMINATORY MOTIVE (effect alone, not enough)

Suspect Class: Strict Scrutiny
Quasi Suspect Class: Intermediate Scrutiny
Not Suspect: Rational Basis

Question 6

Fundamental Rights

Answer 6

These rights trigger SS under the Due Process Clause:

• Right to travel (IV p&i; E.P.)
• Right to vote
• First Amend Rights
• Privacy; includes:
• • Right to marry
• • Right to procreate
• • Right to custody of children
• • Right to keep family together
• • Right to control upbringing of children
• • Right to purchase and use contraceptives
• • Right to abortion (NOT SS- UNDUE BURDEN)
• • Right to engage in same sex activity
• • Right to refuse medical treatment

Question 7

Non Fundamental Rights

Answer 7

These non-fundamental rights only trigger rational basis review:

• Right to practice trade or profession
• Right to physician-assisted death
• Right to education

Question 8

Rights with no known level of scrutiny

Answer 8

• Right to engage in private homosexual activity
• Right to bear arms
• Right to refuse medical treatment

Question 9

Right to Vote

Answer 9

A fundamental right

• Denying some the right to vote– SS
• Laws to prevent fraud in process- “on balance” desirable
• At large elections, constitutional absent discriminatory purpose
• Racial gerrymandering- SS
• One person-one vote (state and local)
• Short durational residency (30 days- ok)

Question 10

Suspect Classifications

Answer 10

Laws affecting these classifications must meet SS:

Race and National Origin:
- Affirmative action, must meet SS (remedying past discrimination- ok; diversity- not compelling)

Alienage

• Feds: rational basis
• States: Generally suspect EXCEPT for participation in self-govt process (police and probation officers; school teachers)
• Does not include undocumented aliens

Question 11

Not Suspect Qualifications

Answer 11

Age, Disability, Wealth, Sexual Orientation

Rational Basis is used

Question 12

Quasi- Suspect Classification

Answer 12

Gender, non-marital children, children of undocumented aliens

Question 13

Equal Protection- Standard by Classification

Answer 13

S.S.: Law must be necessary to achieve a compelling state interest.

• Race
• National Original
• Alienage (generally- not feds)
• Travel (not foreign travel)
• Voting

Intermediate: Law must be substantially related to an important gov interest

• Gender
• Illegitimacy
• Undocumented Alien Children

Rational Basis: Law must be rationally related to a legitimate gov purpose:

• Alienage related to self-gov and dem process
• Congressional reg of aliens
• Age
• Disability
• Wealth
• All others