Constitutional Law II Outline

I.       EQUAL PROTECTION
A.    Intro
1.      Constitutional Provision
a.       No State shall…deny to any person within its jurisdiction the equal protection of the laws.
2.      Historical Context
a.       Originally, there was no provision in the Constitution that provided for the equal protection of laws.
b.      Not surprising considering the fact that U.S. society at the time enslaved African-Americans and routinely discriminated against women.
c.       The 14th Amendment was passed in response to continued discrimination against African-Americans after the Civil War.
3.      A Framework for EP Analysis
a.       Basics
i.        Many laws make classifications and thus are suspect to an EP challenge.
ii.      All EP cases pose the same question: Is the government’s classification justified by a sufficient purpose?
iii.    The Supreme Court has created a framework in which certain types of discrimination are subject to different levels of scrutiny.
b.      3 Main Questions in any EP challenge:
i.        What is the classification?
ii.      What level of scrutiny should apply?
iii.    Does the government meet the level of scrutiny?
c.       Establishing the type of classification
i.        Facial Classification
o   Where the law on its own terms makes distinctions among people based on a particular characteristic.
ú  E.g. a law that prohibits women from voting.
ii.      Discriminatory Impact or Effect
o   Where a law is neutral on its face, but in application has a discriminatory effect on the basis of some characteristic.
ú  E.g. a law that requires flight attendants to weigh less than 120 lbs.  This obviously discriminates against men.
iii.    If a law is facially neutral, discriminatory impact is not enough, the (P) must also prove a discriminatory purpose behind the law.
o   This makes it very difficult to challenge the constitutionality of a facially neutral law.
d.      Appropriate Levels of Scrutiny
i.        Race Discrimination gets Strict Scrutiny
o   Law must be necessary to achieve a compelling gov’t interest.
o   Must also show that it cannot achieve its interest in through any less discriminatory alternative.
o   Gov’t carries the BoP
ii.      Gender/Non-marital children discrimination gets intermediate scrutiny
o   Law must be substantially related to an important gov’t interest.
o   There must be a good fit between the law and its purpose.
o   The burden rests on the gov’t
iii.    All other laws are subjected to rational basis
o   Law must be rationally related to a legitimate gov’t interest.
ú  The government interest can be any conceivable interest.
ú  It does have to be the interest that the legislature actually intended.
o   The challenger carries the BoP.
o   Rational basis is enormously deferential to state
e.       How to decide which type of scrutiny should be applied?
i.        Court has considered certain factors in determining what level of scrutiny to apply.
o   Is the trait immutable?
o   Is the group able to protect itself effectively through the political process?
o   Is there a history of discrimination against the group?
ú  If so, it is more likely that a law would reflect prejudice.
f.       How to determine if the governmental action passes scrutiny?
i.        Courts often look to whether a law is over or under inclusive
ii.      Under inclusive law
o   A law is under inclusive if it does not apply to individuals who are similar to those to whom the law does apply.
iii.    Over inclusive law
o   A law is over inclusive if it applies to those who need not be included to achieve the purpose of the law.
iv.    A law can be both under and over inclusive.
v.      Determining that a law is over or under inclusive is not always fatal to the law.
o   Most laws are to some extent over or under inclusive.
o   The Court has explained that many laws are under inclusive because the gov’t wants to take one step at a time in regulation
g.      Critiques of the legal framework
i.        The rigid tier system of scrutiny unduly limits the scope of judicial analysis.
o   The choice of scrutiny is usually decisive.
ú  Almost all laws will fail SS, while most will pass RB.
o   A sliding scale would be more appropriate, and would enable the court to more readily cut down laws that have hidden invidious purposes.
ú  Stevens voiced this critique in his concurrence in Cleburne.
ii.      The court speaks in terms of tier system, but in reality there is a sliding scale of standards that have been applied.
o   E.g. RB with teeth
o   Beefed up IS
B.     Rational Basis Test
1.      What is a legitimate purpose?
a.       Traditional “police” purposes
i.        Protecting safety
ii.      Public Health
iii.    Public Morals?
o   Probably not a legitimate purpose anymore
ú  After Lawrence v. Texas and Romer v. Evans
b.      Virtually any goal that is not forbidden by the Constitution will be deemed a rational.
2.      Conceivable Purposes are enough for RB
a.       The actual purpose of a law is irrelevant to RB review. The law is upheld if any state of facts reasonably may be conceived to justify the law.
3.      Requirement for a reasonable relationship between purpose and law
a.       Court is extremely deferential to state findings that the law is reasonably calculated to achieve its ends.
b.      Court is likely to tolerate substantial over and under inclusiveness with RB
i.        Transit Authority v. Beazer: The court upheld a law under RB that was both vastly over and under inclusive. The law prevented methadone users from working with the Transit Authority. Most methadone users are free from heroine addiction and use. Thus, the law prohibited a large class of workers who could safely work in the Transit Authority in order to weed out the few methadone users who would not be. The law also did not prohibit any other population of people who could pose a safety risk from working with Transit. Thus, the law was also under inclusive.
o   Levin mentioned that the RB is most often applied like this.
4.      Rational Basis Plus
a.       The court does not always apply RB in such a deferential way. Some scholars have argued that the court applies a rational basis with teeth test to cases where the classification would get RB review, but the court suspects an invidious purpose behind the law.
b.      City of Cleburne v. Cleburne Living Center
i.        Cleburne Living Center, Inc. submitted a permit application to operate a home for the mentally retarded. The city council of Cleburne voted to deny the special use permit, acting pursuant to a municipal zoning ordinance.
ii.      In overturning the ordinance, the court noted that it “rests on a bare desire to treat the retarded as outsiders, pariahs who do not belong in the community.”
o   The court’s decision to overturn the law using RB was really driven by the underlying invidious purpose of the law.
c.       Romer v. Evans
i.        Colorado adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.”
ii.      The state argued that the purpose behind the law was to put gays and lesbians on the same legal footing as everyone else.
iii.    The Court found that the law was overly broad for its stated purpose and also under inclusive (it did not attempt to put any other group that enjoyed anti-discrimination laws on the same footing).
o   Normally, this would not be fatal under RB.
iv.    “Laws of this kind raise the inevitable inference that the disadvantage imposed is born out of animosity toward a class of people. If EP of the laws means anything it must mean that a desire to harm a politically unpopular group cannot constitute a legitimate Gov't interest.”
o   This quote shows what was really driving the case. The court sniffed out an invidious purpose.
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