Flashcards in 6) Equal Protection Deck (64)
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EPC: const basis: states
14A EPC
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EPC: const basis: feds
5A DPC
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EP: most basic rule
EP requires the gvt to justify when it discriminates
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EP analysis
1) ID type of discrim
2) what's standard of review
3) apply (for tailoring, consider who is under/over included)
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standard?: disparate impact
if facially neutral, NOT discrim, and gets RBR
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standard?: disparate impact: exceptions
both of these ARE discrim and get SS:
1) INTENTIONAL disparate impact (must be gvt's purpose not just that they knew)
2) disrcrim APPLICATION of neutral test
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RBR: rule
1) BOP P
2) gvt action is not rationally related to
3) any legit gvt interest
4) (can include purported/not actul interests)
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RBR: when use
all classifications not falling under strict or intermediate scrutiny
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age: standard?
RBR
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disability; standard?
RBR
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alienage? standard?
RBR if done by Congress
SS if done by states
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RBR: result
gvt usually wins
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sexual orientation: standard?
RBR
BUT: no legit gvt purpose (rare thing that can pass RBR)
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intermediate scrutiny: test
1) gvt must show (BOP)
2) substantial relation
3) to an important interest
4) which must be the actual interest
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intermediate scrutiny: when use
1) sex
2) illegitimacy
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strict scrutiny: rule
1) gvt must show (BOP)
2) necessary (no other way) to achieve
3) compelling gvt interest
4) which is the actual interest
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strict scrutiny: "necessary" synonyms
narrowly tailored, least restrictive alternative)
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strict scrutiny: result
gvt usually fails
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strict scrutiny: whe use
1) race
2) alienage by state
3) ntl origin
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de jure segregation: def + result
segregation by law
almost always unconst, def unconst if stigmatizing
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de facto segregation: def + result
seg by private choice (not by operation of law):
NO const problem bc no state action
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school segregation: currently
affirmative duty to eliminate past intentional race discrim of schools (not by classifying/moving individual students based on race)
bussing constitutional for htis
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times when racial classification may pass strict scrutiny
1) exceptional circs (race riot)
2) affirmative action
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affirmative action: def
classification intended to benefit historically discriminated group
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affirmative action: compelling interests
1) remedying state's past discrim
2) diversity in higher ed (only)
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affirmative action: 1) remedying state's past discrim: how to narrowly taiilor?
benefits go to same industry where there was discrim
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affirmative action: diversity in higher ed: how to narrowly tailor?
race can be one factor among many, no fixed weight (quotas is not narrowly tailored)
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alienage discrim by states: test
SS (wrt resident aliens)
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alienage discrim by states: exception
public function exception:
gvt jobs involving discretion: ok USCs only
1) police
2) gvt officials
3) pub school teachers
but NOT purely ministerial function: notary
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alienage discrim by states: illegal aliens
RBR if based on lawful presence
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alienage discrim by states: illegal aliens: exceptions
1) alien children: intermediate scrutiny
2) im preemption -- states can't enact own im policies
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illegitimacy: examples
IS, usu fail (no impt gvt interest)
denying welfare, or worker's comp death benefits = both unconst
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sex discrim: held unconst bc dn pass intermediate scrutiny
estate administration
military housing benefits
alimony
drinking age
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sex discrim: single sex education: "rule"
single sex education (prob ok if avail for all, but no unique opportunity)
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sex discrim: held const bc did pass IS
1) draft
2) statutory rape laws setting higher age of consent for women (actual bio basis)
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sex discrim: general rule
more liekly to be const if based on real biological basis
less likely to be const if based on stereoypes
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gender affirmative action: rule
IS scrutiny --> it's ok to make up for past discrim by ANYONE (dnn race/SS)
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wealth: scrutiny?
RBR
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domestic travel: scrutiny?
SS
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voting: scrutiny?
SS
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sexual orientation: scrutiny?
RBR-ish: majority has never said that passing RBR is enough to make the law ok, bc have always held that dn pass even RBR
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sexual orientation: DOMA case
def of "marriage" and "spouse" lacked const legit purpose bc was jsust movitaved by animus which violates DP
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sexual orientation: Marriage
EPC + DPC both protect marriage
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privileges + immunities: 2 sources
1) 14A
2) Art 4 Sec 2
(both against states)
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14A priv + immunities: rule
"no state shall make or enforce any law which shall bridge the P or I of citizens of the US"
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14A P+I: scope
"citizens," so NOT corporations, not aliens
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14A priv + immunities: rights
1) travel (interestate + move)
2) petition Congress
3) vote for fed ofices
4) assemble
5) enter pub lands
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Art 4 P+I: rule
Art 4 S 2: "the citizens of each state shall be entitled to all privielges and immunities of citizens in the several states"
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Art 4 P+I: aka
comity clause
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Art 4 P+I: def
prohibits states from discriminating against nonresidents, re activities fundamental to the national union
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Art 4 P+I: test (+ gloss)
substantial relation to substantial state interest
(desire to favor locals is NOT a substantial interest)
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Art 4 P+I: scope
"citizens" -- no corps, no aliens
corps can protect against oos discrim by DCC
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Art 4 P+I: held INVALID
1) commercial licenses (fee higher)
2) commuter tax only for nonresidents
3) abortion (only locals)
4) hiring preference (all or private ers)
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Art 4 P+I: held VALID
1) recreational licenses
2) state's purpose is preserving in-state nat resources
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contract clause: rule
Art 1 S 10: "No state shall...pass any...law impairing obligation of contracts"
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contract clause: scope
1) state only not fed ("no state")
2) legislation only not court decs ("pass any law"
3) only existing ks!
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contract clause: test
to decide if can modify the existing k, bal:
1) severity of impairment of k right, vs
2) importance of public interest
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contract clause: result
state can usu modify ks, but less likely if state trying to get out of its own k
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ex post facto laws: scope
against states AND fed
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ex post facto: kinds prevented
1) new crime
2) more punishment
3) less evidence needed to convict
4) longer limitations period AFTER EXPIRATION
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ex post facto: kinds prevented: less evidence needed: dx
(ok quasi procedural)
but making a broader inadmissibility standard does not violate EXPF clause
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bills of attainder: scope
against states and fed
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bill of attainder: def
1) legislation
2) that punshes
3) w/o trial
4) named indivs, or readily identifiable group
5) for past conduct
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