I. Equal Protection
A. Overview
1. 14th Amendment: “no state shall deny to any person w/in its jx the equal protection of the laws.”
2. Constitutional Provisions Concerning Equal Protection
a) Const as orig drafted has no provisions assuring equal protection of the laws
b) After Civil War à passage of 14th Amend: “No state shall…deny to any person w/in its jdx the equal protection of the laws”
c) Sup Ct rarely found any state/local action to violate the Equal Protection Cl until mid-1950s
d) Brown v. Board of Education – beginning of modern era of equal protection jurisprudence
(1) Since Brown – Sup Ct has relied on Equal Protection Cl as a key provision against invidious discrimination and for safeguarding fundamental rights
e) No provision in the Const that says that the fed gov’t cannot deny equal protection of the laws
(1) Bolling v. Sharpe – Ct held that equal protection applies to the federal gov’t thru the Due Process Cl of 5th Amend
f) Ct interpreted 5th Amend as incl an implicit requirement for equal protection
(1) Declared that “discrimination may be so unjustifiable as to be violative of due process”
g) Requirements of equal protection are same whether challenge is to federal gov’t under the 5th Amend, or to state/local actions under 14th Amend
h) Technically, equal protection applies to the federal gov’t thru judicial interpretation of the Due Process Cl of 5th Amend and to state/local gov’ts thru 14th Amend
3. Framework for EP:
a) All EP cases pose the same basic question: Is the gov’t’s classification justified by a sufficient purpose?
(1) Issue: Whether the gov’t can identify a sufficiently impt objective for its discrimination
(2) Many laws draw a distinction among ppl and thus are potentially susceptible to an EP challenge
b) Equal Protection: must have BOTH 1) impact, and 2) intent
c) Sufficient justification depends entirely on the type of discrimination
(1) Sup Ct is extremely suspicious of race discrimination – gov’t may use racial classifications only if it proves that they are necessary to achieve a compelling gov’t purpose à Strict Scrutiny review
d) All Equal Protection issues can be broken down into 3 questions:
(1) What is the classification?
(2) What level of scrutiny should be applied?
(3) Does the particular gov’t action meet the level of scrutiny?
e) Three questions:
(1) What is the classification?
(a) How is the gov’t drawing a distinction among ppl? (Identify how the gov’t is distinguishing among ppl)
(b) Two ways to establish existence of a classification:
(i) Facially Discriminatory: Classification exists on the face of the law
(a) Where the law in its very terms draws a distinction among ppl based on a particular characteristic
(ii) Facially Neutral: discriminatory impact to the law discriminatory effects from its administration
(a) Demonstrating a race/gender classification requires proof that there is a discriminatory purpose behind the law
(b) A law that requires all police to be of a certain height and weight
(i) Found that X% of women do not meet this requirement
(ii) “Discriminatory impact is insufficient to prove racial or gender classification”
(iii) “If a law is facially neutral demonstrating race or gender classification” requires proof that there is discriminatory purpose behind the law
(c) Nature of the classification; is it a suspect classification (like race)?
(i) Fundamental Rights/Interests Doctrine: Less concerned about the classification itself but more concerned w/ the interest at issue (i.e. voting= fundamental right; heightened review)
(2) What is the appropriate level of SCRUTINY? (see chart below) [Differing levels of stds of review are applied depending on the discrimination]
Classification
Standard
Means
Ends
Burden of Proof
Suspect Class
Race, National Origin, Alienage (state/local), Fundamental Interest, Affirmative Action (but prob less strict than SS)
Strict Scrutiny
Necessary (Narrowly Tailored)
Compelling Interest
D (Gov’t)
Semi-Suspect
Gender (but almost closer to SS), Non-marital/Illegitimate children
Intermediate Scrutiny
*which is always closer to SS than RBT
Substantially Related
Important Interest
D (Gov’t)
Non-Suspect Class
Economic, Alienage (at federal level), Age, Disability, Sexual Orientation (but maybe w/ more bite)
Rationality
(Rational Basis Scrutiny)
Rationally Related
Legitimate Interest
p
Rational Review
Intermediate Review
Strict Scrutiny
Means: Rationally/Reas. Related
Means: Substantially related
Means: Necessary
Ends: Legitimate
Ends: Important
Ends: Compelling
(a) STRICT SCRUTINY: a law is upheld if it is proven necessary to achieve a compelling gov’t purpose (race or nat’l origin (& discrim against aliens))
(i) Govt must have compelling (truly significant) reason for the discrimination AND must show it cannot achieve its objective thru any less discriminatory alternative
(ii) Gov’t has the burden of proof
(iii) Law will be upheld only if the gov’t persuades the Ct that it is necessary to achieve a compelling purpose
(iv) Usually fatal to the challenged law
(v) e.g. Discrimination based on race/national origin à strict scrutiny
(vi) Gov’t must have compelling govt purpose/significant reason for discriminating, and it must show that it cannot achieve its objective through any less discriminatory alternative. (narrowly tailored)
(vii)Gov’t has the burden of proof
(viii) SS is almost always fatal to the challenged law
(b) INTERMEDIATE SCRUTINY (gender & non-marital children)
(i) Law is upheld if it is substantially related to an impt gov’t purpose
(ii) Objective must be important
(iii) e.g. Discrimination based on gender and for discrimination against non-marital children
(iv) Gov’t has the burden of proof and the justification must be demanding.
(v) Substantially related to imp gov’t purpose/objective (end)
(vi) Means must be substantially related to end being sought (means = close fit)
(c) RATIONAL BASIS TEST
(i) 1)Legitimate Gov’t Interest (Does law have a legitimate purpose?)
(a) Any conceivable interest can suffice…and gov’t will probably win
(b) Legit if advances traditional police purpose
(c) Virtually any goal not forbidden by Const is sufficient
(d) Protecting safety, public health, public morals
(e) See Romer v. Evans; US RR Retirement Board v. Fritz; FCC v. Beach Communications (below)
(f) Conceivable purpose is enough
(g) FCC v. Beach Communications (1993) [633 in notes]
(i) Involved a challenge to the Federal Cable Comm Policy Act – created exemption to certain regulations for cable TV facilities that serve 1 or more buildings under common ownership or operation
(ii) Reaffirmed – any conceivable legislative purpose is sufficient
(iii) “those attacking the rationality of the legislative classification have the burden to negate every conceivable basis which might support it”
(iv) Ct discusses the interpretation – look at any conceivable interest OR the actual purpose
(ii) 2) Reasonable Relationship – Is the law rationally related to achieving it?
(a) Prohibition on irrational or arbitrary legislation
(b) Tolerance for under-inclusiveness and over-inclusiveness
(c) Ct: “most relaexed and tolerant form of judicial scrutiny”
(d) Under RBT à laws will be upheld unless gov’ts action is clearly wrong, a display of arbitrary power, not an exercise of judgment
(e) UNDERINCLUSIVENESS (when laws do not regulate a
fications and virtually automatic validation
(2) Added intermediate review for equal protection issuesàsex discrimination is the best example
B. Economic Regulations and Rationality Review
1. Rationality review=very deferential, the only thing that won’t pass under rational review is picking on a classification just to pick on them and for no other reason
2. Since 1937 the Court has made it clear that it will defer to gov’t economic and social regulations unless they infringe on a fundamental right or discriminate against a group that warrants special judicial protection.
3. Railway Express Agency v. New York [Douglas opinion; 1949]
a) Facts:
(1) Railway operates a fleet of trucks, on which it sells advertising.
(2) NYC has an ordinance that forbids the sale of advertisements on the side of trucks
b) City’s justification for ordinance: ads on the street are a public safety & traffic hazard
c) Is this a rational response to that purpose?
(1) Yes, gets rid of at least some of the distractions.
d) What was the classification?
(1) General ban on advertising on the side of a truck w/ one important exception—advertising on your own truck was ok (not close fit b/c was exception)
e) Analysis:
(1) Local authorities have own reasons for drawing the classification as they do.
(a) If they feel that the ads for hire presents a greater hazard than those who advertise their own business, then the court cannot second-guess the wisdom of their judgment.
(2) Classification has a relation to the purpose of safety – does not result in the kind of discrim from which the EP Cl affords protection [doesn’t apply to economic protection].
(3) It is not a requirement that all evils of the same genus be eradicated or none at all
f) Rule:
(1) A statute that regulates economic activity will survive an EP challenge if there is a rational relation between the challenged classification and the purpose of the statute.
(2) This statute is under-inclusive, but Ct says that the classification will stand as long as there is any rational basis for it. “It is no requirement of EP that all evils of the same genus be eradicated or none at all.” (The means adopted seem rational to meet the end.)
(a) Ct has held that it’s ok to go at problems in a piecemeal fashion, just b/c it’s under-inclusive, doesn’t make it unconstitutional.
(b) “ONE STEP AT A TIME” = OK
g) Holding:
(1) Ct upheld ordin banning all ads on sides of trucks unless ad was for biz of the truck’s owner
(2) Argued: was an irrational way for gov’t to decrease distractions for drivers/promote traffic safety
(3) Ct: gov’t might have perceived some difference among the ads and that it was immaterial whether the gov’t failed to deal w/ even grater distractions to motorists
(a) “it is no requirement of equal protection that all evils of the same genus be eradicated or none at all”
4. Romer v. Evans [Kennedy opinion; 1996]
a) Facts:
(1) Colorado amended its Const (w/ Amendment 2) to prohibit and nullify all laws that protect homosexuals from discrimination b/c of their sexual orientation
(2) Law also prevented future laws to protect these individuals.
b) Rules:
(1) A law which nullifies all other laws, which protect homosexuals could not possibly have been adopted for any purpose except to discriminate against homosexuals; can’t pass RBT for EP.
(2) A law will be sustained if can be found to advance a legit gov’t interest, even if the law seems unwise or works to disadvantage of a particular group, or if the rationale for it seems tenuous
c) Analysis:
