Con Law II – Professor Crocker
Fall 06
EQUAL PROTECTION
Introduction
a) Introduction:
i) Constitutional Provisions Concerning Equal Protection (EP):
(1) 14th Amendment: “No state shall…deny to any person within its jurisdiction the equal protection of the laws.”
(2) There is no constitutional provision that says the federal government cannot deny equal protection of the laws. However, the Sup.Ct. has interpreted the 5th Amendment as including an implicit requirement for equal protection (Boiling v. Sharpe).
(3) EP only applies to when the government makes classes.
ii) A Framework for Equal Protection Analysis:
(1) Question 1 à What Is the Classification?:
(a) How is the government drawing a distinction among people?
(b) Two ways to determine:
(i) Discriminatory on the face of the law, THEN determine the proper level of scrutiny
(ii) Facially neutral, then challenger must show a discriminatory impact AND a discriminatory purpose, THEN ascertain the proper level of scrutiny.
1. To show discriminatory purpose, challenger must:
a. Prove the existence of purposeful discrimination, and
b. Show that the purposeful discrimination had a discriminatory effect on the challenger.
c. See McClesky.
(2) Question 2 à What is the Appropriate Level of Scrutiny?:
(a) Strict Scrutiny (SS):
(i) This is the hardest to satisfy. Two tough requirements:
1. Compelling objective
2. Necessary means – The fit between the means and the end must be extremely tight. This means that there must not be any less restrictive means that would accomplish the government’s objective just as well.
(ii) The government has the burden of proof.
(iii) SS is usually fatal to the challenged law.
(iv) Generally, used for discrimination based on race or national origin and aliens (several exceptions).
(b) Intermediate Scrutiny (IS):
(i) This is the “middle-level” standard of review.
(ii) Two requirements:
1. Important objective
2. Substantially related means
(iii) The government has the burden of proof.
(iv) Generally, used for discrimination based on gender and against non-marital children.
(c) Rational Basis (RB):
(i) This is the easiest standard to satisfy. This test is enormously deferential to the government and only rarely have laws been declared unconstitutional for failing to meet this level of scrutiny.
(ii) Two requirements:
1. Legitimate state objective – Very broad; practically any type of health, safety, or “general welfare” goal will be found to be legitimate.
2. Rational relation – Only if the government has acted in a completely “arbitrary and irrational” way will this rational link between means and ends not be found.
(iii) The challenger has the burden of proof.
(iv) Generally, all laws not evaluated under SS or IS will be evaluated under RB.
(d) Criteria in Determining Level of Scrutiny: If these criteria are present, it is more likely to warrant a heightened level of scrutiny.
(i) Immutable characteristic
(ii) Ability of the group to protect itself through the political process
(iii) Whether the group has been subjected to a history of discrimination
(3) Question 3 à Does the Government Action Meet the Level
iolates the Equal Protection Clause because it singles out a class of citizens – homosexuals – for disfavored legal status.
(iii) This amendment is unconstitutional because it fails RB, perhaps RB with a bite.
(iv) This opinion recognizes that homosexuality is more of a status than a conduct or lifestyle.
(2) Must It Be the Actual Purpose or Is a Conceivable Purpose Enough?:
(a) A law will be upheld as long as the government’s lawyer can identify some conceivable legitimate purpose, regardless of whether that was the government’s actual motivation. Under RB, the Court has found that the actual purpose is irrelevant and the law must be upheld “if any state of facts reasonably may be conceived to justify” its discrimination.
(b) There is rarely a single, identifiable purpose for a law.
(c) United States Railroad Retirement Board v. Fritz, 449 U.S. 166, U.S. Sup.Ct., Rehnquist, 1980
(i) FACTS: Fritz (∏) and other active and retired railroad workers alleged that the portions of the Railroad Retirement Act of 1974 which denied them retirement benefits violated equal protection standards.
RULE: Social and economic legislation enacted by Congress will be upheld under the Equal Protection Clause if it is rationally related to a permissible government objective.
