Constitutional Rights: Equal Protection

14th Amendment’s Equal Protection Clause: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

Implicated by laws that classify or draw distinctions (“discriminate”) by imposing special burdens on or granting special benefits to some people but not others.

Application to federal government? Yes—Bolling v. Sharpe (1954) (holding that EP clause applies to federal government through due process clause of Fifth Amendment)

• Laws that draw distinctions or make classifications among various PERSONS.
• Basic issue: Is the government’s classification justified by a sufficient purpose? Three analytical questions:
• 1. What is the classification?
• ...A. Facial classifications.
• ...B. Facially neutral, but discriminatory in purpose or effect.
• 2. What is the appropriate level of scrutiny?
• ...A.Strict scrutiny for SUSPECT classifications: race, national origin, alienage (with exceptions). Government must have a compelling purpose and no less-discriminatory means to achieve that purpose.
• ......I. Must be “narrowly tailored” – cannot have any less restrictive means
• ......II. Presumption of unconstitutionality
• ......III. Laws are rarely upheld
• .........A. Affirmative action purposes that meet strict scrutiny: 1) Remedying past discrimination 2) Enhancing diversity IF "plus" factor
• ...B. Intermediate scrutiny for SEMI-SUSPECT classifications: gender (sex), nonmarital children. Government must have an important purpose and means must be substantially related to that purpose.
• ......I. Courts will tolerate a little bit of over- or under-inclusiveness
• ...C. Minimal or rational basis scrutiny for all other classifications: age, economic status, etc. Government must have a legitimate purpose and means must be rationally related to that purpose.
• ......I. Court will tolerate a lot of over- or under-inclusiveness
• ......II. Presumption of constitutionality
• 3. Does the government law or action satisfy the appropriate level of scrutiny?
• ...A. Means / end analysis.
• ......I. END: Importance of government’s purpose/aim/interest (value judgment)
• ......II. MEANS: Method government has chosen to get there (degree – how closely related to end?)
• ...B. Overinclusiveness.
• ......I. Restricts too much – we don’t need to go THAT FAR to accomplish the objective
• ...C. Underinclusiveness.
• ......I. Does not do its job fully - raises question of pretextually stated reasons
• Laws that draw distinctions or make classifications that burden FUNDAMENTAL RIGHTS.

• Triggers STRICT scrutiny

• 1. 1st amendment rights
• 2. Right to travel
• 3. Right to marry
• 4. Right to vote
• 5. Access to justice

Violation of EP clause: purposeful discrimination: discriminatory on face OR disparate impact PLUS intent.

• Types of purposeful discrimination:
• 1. Discriminatory administration or application of a law
• 2. Discriminatory motivation of puprose
• 3. Discriminatory impact or effect (no violation if impact/effect only)

• Proving purposeful discrimination:
• 1. Impact so clearly discriminatory as to allow no other explanation
• 2. History of government action
• 3. Legislative or administrative history of law.

Economic Liberties: only way to declare unconstitutional is by fitting into one of the categories of Footnote 4, no longer is a lack of legitimate purpose enough to invalidate.

Modern rational basis review under the Due Process Clause: Virtually all restrictions tested under the rational basis test are upheld, because it allows a vast range of permissible interests, and generally upholds laws even when their factual basis is highly questionable, even when the laws are overinclusive or underinclusive, and even when there are many less restrictive alternatives that may still accomplish the law’s goal.

• Fundamental Rights
• - Right of Privacy (notice 14th amendment says search/seizure... not privacy)
• - Right of parents to control upbringing of children
• - Right to procreate
• - Right of personal freedom - husband and wife
• - Right to marry
• - Right to abortion (Roe v. Wade) - decided fetus not a person until birth, state's interests limited

• Unenumerated Rights
• Fundamental rights deeply rooted in tradition and history
• - Right to sodomy - not a right b/c not deeply rooted in tradition and history
• - Right to physician assisted suicide - not a right b/c not deeply rooted in tradition and history