Constitutional Law II
Spring 2007
Professor Russell
I. EQUAL PROTECTION
A. Overview (pp.617-23)
1. Equal Protection:
· 5th Amendment – federal government (read into Due Process Clause, Bollinger v. Sharpe)
· 14th Amendment – state & local government (part of Reconstruction)
· why?
o text is broad (“no state shall,” “all people”)
o applied to any “similarly situated entities” that were treated differently
· requirements:
o government action
o “classification” and/or “deprivation” of “fundamental” right
o level of judicial scrutiny
2. Issues:
· what is the classification/government action?
odiscriminatory impact insufficient to prove racial/gender classification
oif law is facially neutral, race/gender classification requires proof that there is a discriminatory purpose behind the law
· what level of scrutiny should be applied?
ostrict: race, national origin, and aliens. (and other immutable characteristics. also consider ability to protect through political process and history of discrimination). government has burden of proof. government must have a truly significant/compelling reason for discriminating, and it must show that it cannot achieve its objective through any less scrutiny.
ointermediate: gender and non-marital children. government has burden of proof. means used need not be necessary, but must have a “substantial relationship” to the important (instead of compelling) end being sought.
orational basis: everything else. (assuming valid exercise of social-economic power). law will be upheld if it is “rationally related” to a “legitimate government purpose.” challenger has burden of proof.
§ rule is enormously deferential to government
§ Court often has said that a law should be upheld if it is possible to conceive any legitimate purpose for the law, even if it was not the government’s actual purpose
orational basis with “bite”: even though burden is on challenger, not deferential to government
§ most often arises when something is troubling to the court. distinction that ratifies some sort of prejudice.
§ would look more to actual purpose. not as tolerant of under/overinclusiveness.
· does the particular government action meet the level of scrutiny?
ounderinclusive: if it does not apply to individuals w
ard affected class).
o Constitutional principle to remain open on impartial terms to all who seek its assistance
· dissent:
o subject properly should be decided by democratic means – morality
o equal treatment does not mean “must as easily obtain preferential treatment.” Amendment merely denies preferential treatment.
o Bowers v. Hardwick held that Constitution does not prohibit making homosexual conduct a crime
b. United States Railroad Retirement Board v. Fritz (1980): conceivable purpose
· Railroad Retirement Act divided employees into various groups based on retirement status, date of qualification, current connection, etc. does NOT violate Equal Protection Clause.
· Court held:
o where there are plausible reasons for government action, inquiry is at an end.
irrelevant whether this reasoning in fact underlay the legislative decision (legislative body never had to articulate reasons for
