EPC: const basis: states
14A EPC
EPC: const basis: feds
5A DPC
EP: most basic rule
EP requires the gvt to justify when it discriminates
EP analysis
1) ID type of discrim
2) what’s standard of review
3) apply (for tailoring, consider who is under/over included)
standard?: disparate impact
if facially neutral, NOT discrim, and gets RBR
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
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)
RBR: when use
all classifications not falling under strict or intermediate scrutiny
age: standard?
RBR
disability; standard?
RBR
alienage? standard?
RBR if done by Congress
SS if done by states
RBR: result
gvt usually wins
sexual orientation: standard?
RBR
BUT: no legit gvt purpose (rare thing that can pass RBR)
intermediate scrutiny: test
1) gvt must show (BOP)
2) substantial relation
3) to an important interest
4) which must be the actual interest
intermediate scrutiny: when use
1) sex
2) illegitimacy
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
strict scrutiny: “necessary” synonyms
narrowly tailored, least restrictive alternative)
strict scrutiny: result
gvt usually fails
strict scrutiny: whe use
1) race
2) alienage by state
3) ntl origin
de jure segregation: def + result
segregation by law
almost always unconst, def unconst if stigmatizing
de facto segregation: def + result
seg by private choice (not by operation of law):
NO const problem bc no state action
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
times when racial classification may pass strict scrutiny
1) exceptional circs (race riot)
2) affirmative action
affirmative action: def
classification intended to benefit historically discriminated group
affirmative action: compelling interests
1) remedying state’s past discrim
2) diversity in higher ed (only)
affirmative action: 1) remedying state’s past discrim: how to narrowly taiilor?
benefits go to same industry where there was discrim
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)
alienage discrim by states: test
SS (wrt resident aliens)
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
alienage discrim by states: illegal aliens
RBR if based on lawful presence
alienage discrim by states: illegal aliens: exceptions
1) alien children: intermediate scrutiny
2) im preemption – states can’t enact own im policies
illegitimacy: examples
IS, usu fail (no impt gvt interest)
denying welfare, or worker’s comp death benefits = both unconst
sex discrim: held unconst bc dn pass intermediate scrutiny
estate administration
military housing benefits
alimony
drinking age
sex discrim: single sex education: “rule”
single sex education (prob ok if avail for all, but no unique opportunity)
sex discrim: held const bc did pass IS
1) draft
2) statutory rape laws setting higher age of consent for women (actual bio basis)
sex discrim: general rule
more liekly to be const if based on real biological basis
less likely to be const if based on stereoypes
gender affirmative action: rule
IS scrutiny –> it’s ok to make up for past discrim by ANYONE (dnn race/SS)
wealth: scrutiny?
RBR
domestic travel: scrutiny?
SS
voting: scrutiny?
SS
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
sexual orientation: DOMA case
def of “marriage” and “spouse” lacked const legit purpose bc was jsust movitaved by animus which violates DP
sexual orientation: Marriage
EPC + DPC both protect marriage
privileges + immunities: 2 sources
1) 14A
2) Art 4 Sec 2
(both against states)
14A priv + immunities: rule
“no state shall make or enforce any law which shall bridge the P or I of citizens of the US”
14A P+I: scope
“citizens,” so NOT corporations, not aliens
14A priv + immunities: rights
1) travel (interestate + move)
2) petition Congress
3) vote for fed ofices
4) assemble
5) enter pub lands
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”
Art 4 P+I: aka
comity clause
Art 4 P+I: def
prohibits states from discriminating against nonresidents, re activities fundamental to the national union
Art 4 P+I: test (+ gloss)
substantial relation to substantial state interest
desire to favor locals is NOT a substantial interest
Art 4 P+I: scope
“citizens” – no corps, no aliens
corps can protect against oos discrim by DCC
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)
Art 4 P+I: held VALID
1) recreational licenses
2) state’s purpose is preserving in-state nat resources
contract clause: rule
Art 1 S 10: “No state shall…pass any…law impairing obligation of contracts”
contract clause: scope
1) state only not fed (“no state”)
2) legislation only not court decs (“pass any law”
3) only existing ks!
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
contract clause: result
state can usu modify ks, but less likely if state trying to get out of its own k
ex post facto laws: scope
against states AND fed
ex post facto: kinds prevented
1) new crime
2) more punishment
3) less evidence needed to convict
4) longer limitations period AFTER EXPIRATION
ex post facto: kinds prevented: less evidence needed: dx
(ok quasi procedural)
but making a broader inadmissibility standard does not violate EXPF clause
bills of attainder: scope
against states and fed
bill of attainder: def
1) legislation
2) that punshes
3) w/o trial
4) named indivs, or readily identifiable group
5) for past conduct
bill of attainder: example
YES a bill of attainder where made crime for communist to be officer of labor union (was like punishment)
