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Constitutional Law II
Wayne State University Law School
Sedler, Robert A.

EQUAL PROTECTION: 14th amendment: “no state shall . . . deny to any person w/in its jurisdiction the equal protection of the laws.”
–        EP applies to the federal gov through 5th amendment DP clause
ONE: what is the classification? How is the gov drawing a distinction among ppl?
–        (1) classification exists on the face of the law: law by its terms draws a distinction based on a particular characteristic
–        (2) facially neutral, but discriminatory impact
TWO: what is the appropriate level of scrutiny?
–        race/national origin (& aliens), & fundamental rights (right to procreate, voting, access to judicial process, interstate travel: strict scrutiny
o    must be necessary to achieve a “compelling government purpose”
§ gov has BOP to show it cannot achieve its objective through any less discriminatory alternative (usually kills challenged law)
–        gender/nonmarital children: intermediate scrutiny
o    must be “substantially related” to an important government purpose
§ gov has BOP to show its objective is “important,” and means must bear a “substantial relationship” to the end being sought
–        rational basis test: everything else, non-fundamental rights (e.g., physician-assisted suicide)
o    must be “rationally related” to a legitimate government purpose
§ law will be upheld if it’s rationally related to a legitimate government purpose.
§ Objective: some thing gov legitimately may do. Means chosen need only be a rational way to accomplish this end
§ challenger has BOP
THREE: does the government action meet the level of scrutiny?
–        ct evaluates the law’s ends and its means
–        often focuses on degree to which law is underinclusive (doesn’t apply to individuals who are similar to those to whom the law applies, ie., law that you have to be 16 for a driver’s license) and/or overinclusive (applies to those who need not be included to achieve gov’s purpose, ie., gov decision to intern all Japanese-Americans)
o    a law can be both of these things
o    used to evaluate the “fit” between means and ends
§ strict: requires close fit, least restrictive alternative
§ intermediate: closer fit, less underinclusiveness/overinclusiveness than rational basis test
RATIONAL BASIS: Meets rational basis review if it is rationally related to a legitimate gov purpose. Strong presumption in favor of laws challenged under this test. Presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality. Law will be upheld unless challenger can prove that it has no legitimate purpose or that the means used are not a reasonable way to accomplish the goal.
–        Lindsley: “if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. . . . the challenger must carry the burden of showing that it does not rest upon any reasonable basis, bus is essentially arbitrary.”
–        McGowan:“state legislatures are presumed to have acted w/in their constitutional power despite the fact that, in practice their aws result in some inequality. Statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
What’s a “legitimate purpose”?
(1)it advances a traditional “police” purpose: protecting safety, public health, public morals
a. Railway Express Agency v. NY: promoted public safety. Law that prohibited the operation of an “advertising vehicle,” but created an exception for “business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner and not used mainly for advertising.”
b. Romer v. Evans: CO amendment that repealed prohibition against gay discrimination, as having no legitimate purpose in singling out a particular group and precluding it from using the political process.
(2)any goal not prohibited by the Constitution
a. New Orleans v. Dukes: SC upheld ordinance banning pushcart food vendors in French Quarter except those who had continuously operated therefore eight or more years. Accepted city’s claim that “street peddlers and hawkers tend to interfere w/ the charm and beauty and . . . have deleterious effect on economy of the city.” Legitimate bc “the city could reasonably decide that newer businesses were less likely to have built up substantial reliance interests in continued operation.”
(3)Desire to infringe freedom of religion/deny freedom of speech is NOT legitimate purpose
(4)Bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental purpose
a. U.S. Department of Agriculture v. Moreno: unconstitutional federal law that excluded from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household. The express congressional purpose of discriminating against “hippies” could not constitute a legitimate purpose.
(5)ANY conceivable legitimate purpose is sufficient, whether or not it was gov’s ACTUAL purpose. Effect: very few laws will fail the test.
a.   gov lawyer must only ID some conceivable legitimate purpose, regardless of whether it was the gov’s actual motivation. Upheld “if any state of facts reasonably may be conceive to justify” its discrimination.
i. U.S. Railroad Retirement Bd v. Fritz: SC upheld federal law designed to prevent retired railroad workers from receiving benefits under both the Social Security system and the railroad retirement system. Law allowed those already retired and receiving dual benefits to continue to get them, but those who were still employed could not get dual benefits unless they had worked for the railroads for 25 years. Person who had worked 10 years and already retired could get dual benefits, but person who had worked for 24 years and still employed could not collect dual benefits. Ct: accepted argument that Congress could have believed that those who had acquired a statutory entitlement to dual benefits while still employed in the railroad industry “had a greater equitable claim to those benefits than those who were no longer in railroad employment when they became eligible for dual benefits.”
The requirement for a “reasonable relationship”: laws will be upheld unless gov’s action is “clearly wrong, arbitrary, not an exercise of judgment”
(1)tolerance for overinclusiveness:
a. NY Transit v. Beazer: SC upheld city’s regulation that prevented those in methadone maintenance programs from holding positions with the Transit Authority. While methodone was effective cure for p hysical aspects of heroin addiction and the majority were free from drug use, and thus exclusion of all methadone addicts was substantially overinclusive bc posed no safety risk, under rational basis, any alternative rule “is likely to be less precise and more costly than total ban” on those using drugs.
(2)tolerance for underinclusiveness: gov may take one step at a time, addressing itself to the phase of the problem which seems most acute
a. Railway Express v. NY: SC upheld ordinance banning ads on trucks except advertising its own business as: gov might have perceived differences among ads and immaterial whether gov failed to deal w/ even greater motorist distractions. “It is no requirement of EP that all evils of same genus be eradicated or none at all.”
(3)tolerance of laws both under- and overinclusive
a. NY Transit v. Beazer: both, but “perfection is not required”. Over: excluded from employment vast majority of methadone users posing no safety risk. Under: allowed employment of other who would be a safety threat.
(4)cases where laws are deemed “arbitrary” and “unreasonable”
a. either not a legitimate purpose OR
b. not a reasonable way of accomplishing the goals
                            i.   ie., City of Cleburne, TX v. Cleburne Living Center: drawing distinction between home for mentally disabled and all others is based on nothing other than irrational prejudices and thus fails even deferential scrutiny.
                           ii.   Allegheny Pittsburg Coal v. County Commission: invalidated county tax assessor’s practi

an allow it to be integrated. Can’t invalidate law bc of “bad motives” of its supporters.
                      ii.   U.S. v. Armstrong: to prove impermissible discriminatory prosecution based on race, D must show discriminatory purpose and effect. Rejected two black Ds’ requests for discovery on a selective prosecution claim bc Ds failed to show gov refusal to prosecute similarly situated whites. D must produce evidence that similarly situated Ds of other races could have been prosecuted, but were not.
c. How discriminatory purpose is proven
                        i.   Personnel Administrator v. Feeney: decisionmaker must have selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group. Where MA law gave preference in hiring for state jobs to veterans, and over 98 percent of veterans were male, substantial discriminatory effect against women, no gender classification bc law creating a preference for veterans was facially gender-neutral and no proof state’s purpose in adopting the law was to disadvantage women.
                      ii.   Village of Arlington Heights v. Metropolitan Housing Dev. Corp.: several ways discriminatory purpose can be proved.
1. impact of law may be so clearly discriminatory as to allow no other explanation than that it was adopted for impermissible purposes. Yick Wo v. Hopkins: city ordinance required laundries be located in brick or stone buildings unless waiver obtained from Bd of Supervisors, and over 200 Chinese petitions had been denied, but all but one of petitions filed by non-Chinese individuals were granted. Statistical pattern that can be explained only by a discriminatory purpose.
2. The history surrounding the government’s action, revealing a series of official actions taken for invidious purposes.
3. Legislative or administrative history of a law: the legislative or administrative history of a law may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.
d. Evidence of a discriminatory purpose shifts the burden to the government to prove it would have taken the same action without the discriminatory motivation/had the impermissible purpose not been considered
                        i.   Batson v. KY: discriminatory use of peremptory challenges by a prosecutor denies EP. Three step process to decide whether there is impermissible discrimination in jury selection. (1) the criminal defendant must set forth a prima facie case of discrimination by the prosecutor. The D first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the D’s race. (2) Burden shifts to the prosecutor to offer a race neutral explanation for the peremptory challenges. The prosecutor’s rebuttal cannot be based on the assumption that a juror will be sympathetic to the D merely because they share the same race. Also, a white D could assert this type of claim when whites are excluded from the jury. Finally, the trial court must decide whether the race neutral explanation is persuasive or whether the D has established purposeful discrimination.