West/ConLawII/Spring2013
EQUAL PROTECTION: 14th amendment: no state shall deprive any person of life/liberty/property w/o due process of law, nor deny equal protection of the laws to any person within its jurisdiction
applies to federal gov’t via 5th amendment due process clause (bolling v. sharpe); began to be used starting w/ brown v. board of education
applies to state gov’ts via 14th amendment due process clause
3 considerations for equal protection analysis:
what is the classification?
2 types of equal protection violations: facial discrimination, discriminatory effect
what level of scrutiny should be used?
strict: race/national origin, (usually) alienage
gov’t has burden of proof; narrowly tailored to compelling gov’t purpose; must have truly significant reason for discriminating and can’t overlook less discriminatory alternatives
intermediate: gender, discrimination against non-marital children
gov’t has burden of proof; must be substantially related to important gov’t purpose
rational basis: everything other than race, national origin, gender, alienage, legitimacy; e.g. age, disability, wealth, sexual orientation
challenger has burden of proof; rationally related to legitimate gov’t purpose
plausible reason for congressional action forecloses need for further inquiry; doesn’t matter whether plausible reason is congress’ actual motivation (us rr retirement board v. fritz)
challenger must negate every conceivable basis for supporting legislation (fcc v. beach communications)
legislation valid unless it burdens fundamental right or targets suspect class, in which case it must pass heightened scrutiny; cannot target one group and deny them protection (e.g. statute prohibiting all gov’t action designed to protect LGBTs is invalid; romer v. evans)
classifications must be rationally related to legit gov’t interest, whether the congressionally stated goal or another interest (us dept of agriculture v. moreno)
need more than just others’ negative attitudes or vague fears of community to justify classification (cleburne v. cleburne living center)
what is legitimate purpose: advances traditional police power (safety/health/morals), anything else not forbidden by constitution (peace and quiet, law and order)
problems: possibly undue deference to legislature, inconsistent application (as to level of deference)
does action meet scrutiny level? see whether law is over- or under-inclusive; closer fit may be required for heightened scrutiny level
immutable characteristics generally get heightened scrutiny; take into account ability to protect oneself through political process
but not always; e.g. mentally retarded are not quasi-suspect class (cleburne v. cleburne living center)
equal protection invoked when gov’t discriminates as to exercise of fundamental right (e.g. procreation, voting, travel, judicial access)
types of discrimination receiving rational basis review:
age: rational basis review (MA board of retirement v. murgia)
justifications: no history of purposeful unequal and/or stereotypical treatment; old people not a suspect class
mandatory retirement ages have been upheld (e.g. murgia, vance v. bradley)
disability: rational basis review (cleburne)
distinctions are made b/w mentally retarded and mentally ill b/c treatment for retardation is more objective and less invasive (heller v. doe)
ADA prohibits discrimination against disabled regardless of equal protection
wealth: rational basis review since 1970; before that heightened scrutiny
poverty is not a suspect class (san antonio indep. sch. dist. v. rodriguez)
why? shouldn’t interfere w/ gov’t ability to appropriate funds; state interest in allocating limited resources trumps potential unfair impact on families (e.g. larger families getting less welfare allotment than smaller ones due to welfare cap; dandridge v. williams)
financial need alone doesn’t identify a suspect class for equal protection analysis; e.g. refusing to fund abortions is valid (maher v. roe)
e.g. denying free trial transcripts to indigent defendants, poll taxes, etc. are invalid (griffin v. illinois, harper v. VA board of elections)
sexual: rational basis review
but animus against LGBT community not enough to satisfy even rational basis, even considering “moral” basis (romer)
alienage: rational basis review
rational basis review for federal laws expressly enacted by congress or presidential order (mathews v. diaz)
denying education to undocumented aliens unconstitutional even under rational basis review (plyler v. doe)
preservation of resources is invalid justification for using classification, w/o showing that illegal immigrants bring undue burden on economy or ability to provide quality education
e.g. excluding aliens from serving as teachers or police officers valid (foley v. connelie, ambach v. norwick)
types of discrimination receiving strict scrutiny:
race/nationality: strict scrutiny; discrimination must be necessary, purpose must be compelling, cannot be nondiscriminatory alternatives available
any racial classification gets strict scrutiny regardless of the reason for the classification (johnson v. california)
2 types of race/nationality classifications: facial (text draws distinction b/w races or nationalities); discriminatory impact (facially neutral law applied in a way that has discriminatory impact and purpose)
3 types of facially discriminatory laws:
race-specific classifications that disadvantage racial minorities (korematsu)
racial classifications burdening both whites and minorities (loving)
laws requiring separation of races (plessy)
race-specific laws disadvantaging racial minorities
pre-civil war: protected by constitutional provisions
article I section 2: house of rep. apportioned by whole # of free persons and 3/5 of slaves
article I section 9: can’t ban importation of slaves until 1808
article V: can’t alter article I section 9 by constitutional amendment
article IV section 2: fugitive slave clause: slave in one state can’t become free by going to free state
dred scott v. sandford: congress cannot invalidate constitutional right to property in slave; black people cannot have citizenship rights under constitution
post-civil war: 13th amendment prohibits slavery; 14th amendment grants citizenship to everyone born in USA, cannot be denied privileges/immunities or life/liberty/property w/o due process, can’t be denied equal protection
why strict scrutiny? primary purpose of 14th amendment to protect black people; racial history makes it likely that racial classifications would be based on stereotypes/prejudices; victims of discrimination are politically less powerful
laws curtailing civil rights of a racial group are immediately suspect but not necessarily unconstitutional
wartime: congressional war powers allow for racially discriminatory laws that have close and definite relationship to preventing espionage and sabotage (korematsu v. us)
classifications burdening both whites and minorities
anti-miscegenation laws illegal; just b/c statute applies equally to whites and minorities doesn’t mean it satisfies equal protection w/o a legitimate purpose; racial discrimination is not a legitimate purpose (loving v. virginia)
societal biases are insufficient as a legal reason; e.g. fact that child lives in mixed-race household insufficient to revoke custody (palmore v. sidoti)
laws requiring racial separation
separate but equal: plessy v. ferguson: 14th amendment isn’t intended to abolish all color distinctions or enforce social equality in addition to political equality; separate-but-equal valid under police power
separate-but-equal laws upheld in:
segregation laws upheld under separate-but-equal (berea college v. kentucky)
whites-only high scho
e diversity invalid for overbreadth even in light of past discrimination (wygant v. jackson board of education)
types of discrimination receiving intermediate scrutiny:
gender discrimination: intermediate scrutiny
pre-1973: rational basis; e.g. law preferring males to be estate administrators invalid (reed v. reed)
1973-1976: strict scrutiny; justified b/c gender is visible and non-chosen characteristic and women face discrimination
e.g. disparate treatment of servicemen and women in claiming dependents invalid (frontiero v. richardson)
1976: intermediate scrutiny: requires important/exceedingly persuasive state interest and substantial tailoring to achieve that interest (craig v. boren)
can rely on physical differences, but not “inherent differences” that have no proof or basis in reality
proposed alternatives should eliminate discriminatory effects as much as possible and bar like discrimination in the future, by placing denied people in the position they would have occupied in absence of discrimination (united states v. virginia)
evaluate gender-discriminatory laws based on whether they are based on stereotypes or biology
gender affirmative action: justified in limited circumstances if it intentionally and directly assists members of disproportionately burdened sex, but still begets inquiry; must show that burdened sex lacks/lacked opportunities (mississippi university for women v. hogan)
sex crime laws that treat women differently from men are valid b/c risks of sex affect each gender differently and gender-neutral statute wouldn’t necessarily be as effective (michael m. v. superior court of sonoma county)
selective service laws requiring only males to register are valid b/c women are ineligible for combat and military is accorded great deference (rostker v. goldberg)
laws applying to non-marital children: intermediate scrutiny
not rational basis b/c unfair to penalize children for parents’ lack of marriage; not strict scrutiny b/c discrimination against illegitimate children has never reached the level of race, and it isn’t a visible characteristic
laws providing rights to only marital and not non-marital children are unconstitutional
laws providing rights to some non-marital children but not others are analyzed on case-by-case basis
conditioning inheritance from father on establishing paternity or father acknowledging paternity during his lifetime: valid b/c state interest in preventing fraud (lalli v. lalli, labine v. vincent)
conditioning social security survivors benefits on paternity and paternal support: valid b/c presumptions in favor of marital children allowed gov’t to reduce administrative burdens and didn’t preclude children from getting benefits (mathews v. lucas)
conditioning disability survivors benefits on proving paternal support while allowing for legitimate children: invalid b/c denying opportunity to establish dependency wouldn’t serve purposes of act when children are in fact dependent (jiminez v. weinberger)
heightened paternity requirements for citizenship valid b/c state interest in ensuring that father-child ties are equivalent to mother-child ties (nguyen v. ins)
