Con Law II
Professor Sedler
Fall 2010
1) Equal Protection (2/3 of semester) p.1178 L-name
a) Point of it: Protect newly emancipated AA slaves from discrimination- but the court gives a lot of deference to classification – RATIONAL BASSIS! 14th amendment only applies to States, not federal government (like DC).
b) Equal Protection challenge: A challenge to any classification of any legislation. Some statues EXEMPT some groups from legislation (Railway Express) – so there is a favored group and a disfavored group.
c) New Orleans v. Duke- Ban on all push cart vendors except favored group (only 2 people)
i) Benefit- Cant give benefit to everyone, so will exclude some people. (tax cuts for people under 250K) This is a legislative classification of a group.
ii) LITIGATON: The group that is disfavored has a potential Equal Protection claim-That they were denied a benefit or deemed unable to do something that another person was given.
d) WHY HAVE DISFAVORED GROUPS: trades offs are necessary in the political process so that the legislature can vote for something and still keep their constituents.
i) Bans on same-sex marriage are arbitrary and irrational- prejudice is not a legitimate interest because of their sexual ordination, also morality is not either (Laurence case from 1L) (the argument that marriage-children go together and gay people can’t have them-not true today)
ii) Segregated DC after Brown- Congress wanted kids to go to segregated schools-and they controlled DC. BUT can fall back on Due Process Clause-for federal issues, that it’s irrational.
iii) 5th Amendment Due process is violated if Equal protection is offended if in the state- But only Due Process (unless there is a federal interest that is present where there is no state interest) So, if equal Protection is violated, it really is due process sin federal government.
(1) Federal government can discriminated over resident aliens, unlike states, because they control immigration.
(2) Arizonian Immigration- State is trying to protect boarder and demands people have proof of citizenship. But this is not required of citizens currently.
(3) School: State said kids did not have “right” to attend school, but they are attending school under contract. Argument-they can’t be separated by race because Equal Protection right is an separate right.- and the right to equal protection is an independent right and should not be discriminated against for benefits.
iv) General Classifications: only for the purpose of the legislation.
(1) BOOK- Section 1-ordinary rights so only rational basis applies (rationally related to governmental interest). Section 5-fundamental rights are implicated so it must be a compelling governmental interest. (ONLY Fundamental rights: marriage and family, reproductive freedom, right to travel interstate, and ??) Advance a Compelling governmental interest in the least drastic means.
(2) ****RULE! Step: 1) Identify favored and disfavored group(does not get benefit, or is regulated), 2) Are the favored & disfavored groups similarly situated with respect to the purpose of the underlining legislation? (not if regulating MDs and not MDs-can regulate one things at a time and make distinction of a small favored group-so classification is a reasonable one) (Who benefits? Railway case (p.1179) a. NOT SIMILARLY SITUATED SO E.P. CLAIM FAILS commercial advertising-distracting because they’re trying to get attention, but businesses with sign are not)(Railway express-not similarly situated because different distractions) (Jackson-objective test-not similarly situated)(b. if they ARE similarly situated then they need a legitimate purpose/justification and ends-means (usually benefits cases)), 3) Independent justification? Legislature has to give a justification a. Purpose of legislation?-this is a value judgment by the court and does the classification further a legitimate interest (rational basis or compelling governmental interest) b. ENDS-MEANS; how well does the classification accomplish the purpose of the legislation? If rational basis/compelling governmental interest. Is it over inclusive/under inclusive to exempt too many (but court does allow this)? (rape-we don’t want women to come in and accuse husband of rape; argument against-that the purpose is equally served to prosecute husbands of rape to prevent women from getting raped)
(a) If rational basis is classification (normal rights) than used for each prong
(b) If fundamental right then must use compelling governmental interest. (rights to travel, family rights, reproductive rights, or argue what is a fundamental right )
(3) Example-married men who raped their wives were no prosecuted. Favored group-women victims who were raped by men not husband, AND husbands who rape wife.
(4) Example- Property taxes related to how much each school gets. Is it rationally related to the interest that government wants local control of school-YES. BUT if found an education is a fundamental right-then need a compelling governmental interest (but it isn’t-but could argue).
(5) NYC v. Beazer (p.1185) purpose was to protect both, and the legislature did it in a rational way.
(6) UNDERINCLUSIVE laws- argument for it is that one step at a time, can only regulate things one-step. The group classification must be a reasonable one.
(7)
e improved property. It is reational to say that they want to protect people who already live there-this is reasonable. Allegheny did not claim a rational reason.
2) EXAM- look at the classification of right and see what scruitney would take place-either rational bassis/or legitimate governmental interst.
3) Section 2: Race and Ethnic Acestry Equal Protection (p.1194): laws that classify on bassis of a group AnD discriminate on the bassis of the status of a group.
a) RULE: Calssification on the basis of race is considered by the courts as suspect, so it requires strick scruitney. And so they need to have compelling governmental interst, and needs to be the least restrictive possible.
b) Gender: Important and substantial relationship (so substaial relationship to governmental pupose)
c) Aleins: State is compelling governmental interests, and when it federal government it’s rational bassis.
d) All other classifications are governmed by rational basis standard of review. BUT it must be applying the procdent.
(1) Expressed Racial Discrimination: (equally whites/balcks-but historically again minorities.)
(a) Constitution: 3/5th compromise (slave was counted-so increased electorial college)
(b) Dred Scott v. Sandford- that blacks who are slaves were not meant to have rights because the framer’s did not intend to give them rights. AA were subjugated by the white race so they were not able to have rights. Slaves=property.
(2) Laws that are neutral on their face but there is a claim of discrimination: Have to show that discriminatory effect was intended
(3) Affirmative Action: Discrimination against whites in an effort to overcome a long history of racial discrimination.
(4) 14th Amendment, section 1-to make people who are born on our earth a citizen. (birthright citizen)
4) II. Discrimination against racial and ethnic minorities (p.1197)
Strauder v. West Virginia: Why did state law prohibit AA serving form state juries violate Equal Protection?- Right to exemption from unfriendly legislation against them purely because they are black is equal to limiting their security and implying their
