Part II Equal Protection

Question 1

PART II:
EQUAL PROTECTION

Answer 1

When the government draws distinctions between
people, equal protection claims examine whether
the government classification is justified.

Distinction Classification Discrimination

Note: Almost every law will include some form of classification

Question 2

Key dates

Question 3

Thirteenth Amendment

Answer 3

Section 1.
Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the
United States, or any place subject to their
jurisdiction.
Section 2.
Congress shall have power to enforce this article
by appropriate legislation.

Question 4

14th Amendment

Answer 4

Section 1: All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein
they reside. No state shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive
any person of life, liberty, or property, without due
process of law; [nor deny to any person within its
jurisdiction the equal protection of the laws.]

Question 5

Fifth Amendment

Answer 5

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the
land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put
in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for
public use, without just compensation.

Note: There is no reference to EP in the 5th A. However, the SC has interpreted it to include EP.

Question 6

EP Rule of Three

Answer 6

Equal Protection Framework
1. Is there a classification?
2. What is the appropriate
level of scrutiny?
3. Does the government’s
action meet the designated
level of scrutiny?

Question 7

What happens when a plaintiff alleges injury under EPC when government has passed a discriminatory law (or taken some other discriminatory action) based on a suspect or quasi suspect classification?

Answer 7

the court will NOT apply a heightened level of scrutiny unless the plaintiff first establishes that the government had the intent to discriminate against the protected class. (Washington v. Davis)

some factors for disparate treatment are discriminatory impact; history of decision; sequence of events; departures from usual process of substantive rules; legislative history

Question 8

HOW TO
IDENTIFY THE
EXISTENCE OF A
CLASSIFICATION?

There are two ways to identify a classification

Answer 8

1. The class is evident on the face of the law.
   * Example: Only those 16 years or
   older can apply for a driver’s license.
2. When a law is facially neutral, a class
   may still exist if there is discriminatory
   intent and a discriminatory impact.
   * Example: A height and weight
   classification for employment may
   have a discriminatory gender impact.
   If the law is facially neutral, the
   discrimination requires the existence
   of discriminatory intent and
   discriminatory impact.

If there is no class, there is no EP

Question 9

THREE LEVELS
OF JUDICIAL SCRUTINY

Answer 9

Rational Basis, Intermediate Scrutiny, Strict Strutiny

Question 10

Rational Basis

Answer 10

1. Government is
   pursuing a legitimate
   government interest.
2. Law is rationally
   related to that interest.
3. Challenger has the
   burden of establishing
   that government does
   not meet this test.

Question 11

Intermediate Scrutiny

Answer 11

1. Government is
   pursuing a significant (or
   important) government
   interest.
2. Law is substantially
   related to that interest.
3. Law is narrowly
   tailored to achieve that
   interest.
4. Government has the
   burden of establishing
   that its actions meet
   this test.

Question 12

Strict Scrutiny

Answer 12

1. Government is
   pursuing a compelling
   government interest.
2. Law is necessary to
   achieve that interest.
3. Law is narrowly
   tailored (least restrictive
   means) to achieve that
   interest.
4. Government has the
   burden of establishing
   that its actions meet
   this test.

Question 13

THERE ARE EXCEPTIONS

Answer 13

• Rational basis with bite
• Exacting scrutiny
• Bruen Test (Second Amendment)
• O’Brien Test (First Amendment)

Question 14

what are the exceptions?

Answer 14

Rational Basis with Bite

Overview: This is an informal term used to describe a more rigorous application of the rational basis test. While the standard rational basis review generally upholds government actions as long as they are rationally related to a legitimate government interest, “rational basis with bite” involves a closer scrutiny, particularly in cases where there might be a suspicion of prejudice or a history of discrimination against a marginalized group.
Applications: Often seen in cases involving sexual orientation or disability.
Exacting Scrutiny

Overview: Exacting scrutiny is often used in cases involving the First Amendment, particularly in the context of content-neutral restrictions on speech or the regulation of campaign finance.
Requirements: The government must demonstrate that the regulation is substantially related to a sufficiently important governmental interest and that the means chosen to achieve that interest are narrowly tailored.
Bruen Test (Second Amendment)

Overview: Stemming from the 2022 Supreme Court case New York State Rifle & Pistol Association Inc. v. Bruen, this test focuses on Second Amendment rights.
Approach: The Court indicated that when evaluating Second Amendment cases, the government must demonstrate that the regulation is consistent with the nation’s historical tradition of firearm regulation. It moves away from the two-step approach previously used in many lower courts.
O’Brien Test (First Amendment)

Overview: This test comes from the 1968 Supreme Court decision in United States v. O’Brien, concerning regulations that incidentally affect speech.
Requirements: The government must show that the regulation is within the constitutional power of the government, furthers an important or substantial government interest, the governmental interest is unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Question 15

EXAMPLES OF CLASSIFICATIONS
AND THE APPROPRIATE
LEVEL OF REVIEW

Answer 15

The proper level of scrutiny can be determined by looking at court precedent regarding particular classifications. Is there a classification that addressed the current issue? If there is no precendent then you must evaluate four factors

Question 16

Four factors to be considered in equal protection when there is no precedent

Answer 16

immutable characteristics that define them as a discrete group; prejudice/discrimination; lack of political power; and unpopular group

exam

Generally, SS is given
to classifications of race/national origin and alienage classifications. IS is given to gender or
illegitimate children classifications. and RBT is given to age, disability, and wealth discrimination. Although RBT is the least rigorous form of review, laws may still fail RBT if the law is born of animus because such an interest is never legitimate. If it is unclear what type of judicial review a classification is to be given, we must ask whether the class has
immutable characteristics, whether they can protect themselves via the political process, whether they have a history of discrimination, and whether there is existing prejudice against the class.

Question 17

Strict Scrutiny

Answer 17

• Race
• National origin
• Alienage
• Fundamental rights
• Content-based
  restrictions on
  speech

Question 18

Intermediate Scrutiny

Answer 18

• Gender
• Non-marital status of
  parents (illegitimacy)
• Content-neutral
  restrictions on
  speech
• Commercial speech

Question 19

Rational Basis

Answer 19

when classification is not subject to heightened scrutiny

age
disability
poverty
undocumented foreign nationals
sexual orientation

Question 20

SOME CRITERIA
THAT MAY INFLUENCE
EQUAL PROTECTION ANALYSIS

Answer 20

Existence of immutable characteristics
* Ability of the targeted group to protect itself
through the political process
* History of discrimination against the targeted
group
* Existence of prejudice or stereotypes

Question 21

ASSESSING THE RELATIONSHIP
OF MEANS AND END

Answer 21

Overinclusive and Underinclusive

Question 22

Overinclusive

Answer 22

• A law is overinclusive if
  it regulates individuals
  who are not similarly
  situated.
• The law covers more
  people than it needs in
  order to accomplish its
  goals.

Question 23

Underinclusive

Answer 23

• A law is underinclusive
  if it does not regulate
  individuals who are
  similarly situated.
• The law covers less
  people that it should in
  order to accomplish its
  goals.

Question 24

Can you raise a substantive due process claim under due process?

Answer 24

Under SDP we ask whether the government has an adequate reason for restricting life, liberty or property.

Question 25

What following 3 questions do we address under substantive due process?

Answer 25

(1) what is the nature of the right; (2) has the right been substantially infringed; and (3) does the government action meet the designated level of scrutiny?

Question 26

In light of contraceptives the following is analyzed:
what is the nature of the right?

Answer 26

First it is determined whether there is a fundamental or non-fundamental right at issue. Frundamental rights include privacy, procreation, and personhood (right to marry, sexual activity, contraceptives).

Question 27

If right has already been deemed fundamental by the SC we must consider?

Answer 27

(1) identify and frame the right; (2) whether the right is deeply rooted in our nations history and tradition.

Question 28

Has the right been substantially infringed?

Answer 28

although the SC has not provided much guidance on how to determine infringement, we must look to the directness and substantiality if that infringement.

Question 29

Does the government action meet the designated level of scrutiny?

Answer 29

A fundamental right must meet SS. Under SS the government action must be necessary to achieve a compelling government purpose. The law must be narrowly tailored to achieve that interest. The government has the burden of this test.