Con Law Final Exam Flashcards
(84 cards)
1
Q
Footnote 4 factors for qualifying for Strict Scrutiny
A
- History of discrimination
- Immutable characteristic
- Ability
- does this P have the ability to do what the other party does?
- Political powerlessness
2
Q
Gender based discrimination
A
- Intermediate level scrutiny:
- Substantially related to a an important government interest
- There must be a gender-based classification on the face of the statute; OR
- an intent to discriminate on the part of the govt actor
- otherwise, if it is just disparate impact it is rational basis review
3
Q
Affirmative Action
Women
A
- Intermediate level scrutiny
- Substantially related to a an important government interest
4
Q
Affirmative Action
Race
A
- Strict Scrutiny
- compelling government interest, means narrowly tailored to the ends
5
Q
Single-sex schools
A
- Although racially separate schools are never considered equal, single-sex schools are potentially equal and, therefore, potentially constitutional.
- intermediate scrutiny
6
Q
laws classified based on race
A
all laws that classify based on race are subject to strict scrutiny, including affirmative-action programs meant to benefit historically disadvantaged minorities.
7
Q
Inter-district school busing
A
School districts are not required to engage in inter-district busing unless the government intentionally drew the school districts in a discriminatory manner. Milliken v. Bradley, 418 U.S. 717 (1974).
8
Q
laws that are neutral on their face (race)
A
If a law is neutral on its face, strict scrutiny will not apply, even if the law has a disparate impact, unless discriminatory intent can be proven. See Washington v. Davis, 426 U.S. 229 (1976)
9
Q
Selective enforcement of a law on the basis of race
To prevail, one must:
A
(1) prove the law has a discriminatory effect,
(2) prove the law had a discriminatory purpose, and
(3) make at least “a credible showing of different treatment of similarly situated persons” of other races.
more stringent standard
10
Q
even if a law is facially neutral, it is invalid if it has both:
(race)
A
(1) a disparate impact on certain racial or ethnic groups and
(2) a discriminatory intent.
11
Q
Affirmative action
to uphold the law:
A
- hard quotas are not okay
- promoting diversity in schools is a compelling govt interest
- increasing minority presence and achieving racial balance in settings other than schools are not, by themselves, compelling government interests.
12
Q
If a city’s affirmative-action program attempts to achieve minority representation equal to the percentage of minorities in the city…..
A
….that is a factor that undermines—not supports—the constitutionality of the affirmative-action program. Race-based affirmative-action programs may not use quota systems to try to remedy discrimination.
13
Q
Affirmative Action (race)
A
- Programs are more likely to be upheld if there is a showing of a history of discrimination and current underrepresentation.
- However, even with such a showing, affirmative-action programs will fail strict scrutiny if they set specific quotas, numerical targets, or give extra points to minority students solely based on their race.
14
Q
Suspect classes:
Strict Scrutiny
A
- Race
- National Origin
- Alienage
- exceptions: (rational basis)
- Federal laws
- state laws: political function
- exceptions: (rational basis)
- (religion)
15
Q
Lochner Era
A
16
Q
Fundamental rights that require strict scrutiny
A
- voting
- running for political office,
- accessing the courts
- accessing justice
- migrating to a different state, and
- the right to marry, procreate, and live with your family
- (there is not a fundamental right to education or necessities)
17
Q
Is access to the court system a fundamental right?
A
Yes. Therefore, requiring all defendants to pay a fee to have access to the appellate courts is an unconstitutional denial of that fundamental right on the basis of someone’s ability to pay. However, note that it is not necessarily unconstitutional to charge court fees; the fee would be permissible if indigent defendants could obtain a fee waiver.
18
Q
Is the right to travel fundamental?
A
Yes. The right to travel is fundamental and includes “the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State.”
19
Q
Levels of scrutiny for laws that draw a distinction based on ALIENAGE
A
- Rational Basis
- all federal laws
- state laws related to performance of political functions
- Strict Scrutiny
- all other state laws
20
Q
Is wealth or lack of wealth a suspect class?
A
The U.S. Supreme Court has applied strict scrutiny to invalidate many laws that required the payment of certain fees or taxes—but only because the fee or tax impaired some other fundamental right, like the right to vote or access the courts, not because it drew a wealth-based distinction.
21
Q
Poll taxes
A
Under strict-scrutiny review, making the payment of a fee necessary to vote (i.e., imposing a poll tax) will always fail.
22
Q
Is there an equal protection violation?
A
- Is there…
- state action,
- does not bind private citizens
- a classification
- a facial or
- applied challenge
- the law is being administered in an unconstitutional way, even though its actual text appears neutral
- state action,
23
Q
Quasi-Suspect Classes
Intermediate scrutiny
A
- Gender
- legitimacy of birth
- sexual orientation?
24
Q
Non Suspect Classes
Rational basis applied to discriminatory statutes targeting these:
A
- age,
- disability,
- wealth,
- political preference,
- political affiliation, or
- felons.
25
Restrictions of a fundamental right, regardless of the group
Strict scrutiny is applied to restrictions of any fundamental right, regardless of the group involved.
26
Scrutiny chart
* Strict Scrutiny
* suspect class
* race, national origin, alienage, (religion)
* fundamental rights
* Intermediate Scrutiny
* quasi-suspect class
* gender, illegitimacy, education for undocumented minors
* Low level scrutiny with a bite
* sexual orientation
* Rational Basis
* everything else
27
Do same-sex couples have a fundamental right to marry?
Same-sex couples have a fundamental right to marry _protected by a convergence of both the Due Process and Equal Protection Clauses._
28
Are classifications based on mental illness or disability suspect?
No.......and therefore subject only to deferential rational basis review. However, courts have often applied what has been called “_rational basis plus bite_” review, a somewhat less deferential version of rational basis review.
29
Can a govt regulate who runs for office?
* The government has the right to make rules about who is eligible to run for office and to reasonably limit who may be placed on the ballot.
* However, laws that are unduly burdensome to third parties, independent candidates, or indigent candidates are reviewed under strict scrutiny.
30
What is the burden of proof applied under rational-basis review?
The person challenging the law must prove that the law was not rationally related to promoting any legitimate government objective.
31
Scrutiny for "the right to education"
The U.S. Supreme Court has held that there is no fundamental right to education. Therefore, any system of funding education will be evaluated under rational-basis review.
Under rational-basis review, legislation is presumed to be valid and will be sustained if the classification drawn by the statute is: (1) rationally related (2) to a legitimate state interest.
32
Who has the burden of proof under strict scrutiny?
The government
They must persuade the court that they have a compelling purpose, and there was no less discriminatory alternative.
33
Substantive due process
fundamental vs non-fundamental right
* fundamental: strict scrutiny
* non-fundamental: rational basis
34
Substantive due process
non-fundamental rights
Rational basis is applied to these regulations:
* economic
* social welfare
* safety
* health
35
Substantive Due Process
Fundamental Rights
Strict Scrutiny
Rights to:
* Privacy
* marital privacy
* abortion
* Personal autonomy
* care, custody, and control of children
* right to marry
36
Liberty and Lochner
* (liberty encompasses) Enumerated rights…to….unenumerated rights
* Enumerated: for example, California must not deprive me of my 1st amendment free speech rights
* Unenumerated: ex: liberty of contract
* 1. Fundamental liberties
* Lochner held that right to contract was a fundamental liberty interest. Ended in 1937.
* 1. Non-fundamental right
* Now, economic rights are non-fundamental
37
Low Level Scrutiny with a Bite
Legitimate government objective
Means rationally related to the end
_Burden is on the government_
38
Traditional Low Level Scrutiny
Legitimate government objective
Means rationally related to end
_Burden is on the **challenger**_
39
Who has the burden of proof for Intermediate Scrutiny?
The government
40
Rational Basis
What constitutes a legitimate purpose?
* Public safety, public health, and public morals are legitimate government purposes
* BUT virtually any goal that is not forbidden by the Constitution will be deemed sufficient to meet the rational basis test.
* It does not have to be actual purpose, but can be any purpose the govt finds
41
Can discriminatory intent be proven by statistics?
Yes, see Yick Wo
42
Affirmative Action
benefitting Women
Gender classifications benefiting women based on role stereotypes generally _will not be allowed_.
Gender classifications benefiting women designed to remedy past discrimination and differences in opportunity generally _are permitted_.
43
if Undocumented Child is Denied a Free Public Education
Intermediate scrutiny
A state may not deny free public education to children not legally admitted into the United States without violating the Equal Protection Clause
44
if Alienage Classification is Related to Self-Government and the Democratic Process
* Being a police officer or teacher
Low Level scrutiny
45
Sexual orientation
what level of scrutiny?
Low level scrutiny with a bite.
The burden of proof is on the govt
46
Transgender
level of scrutiny
Satisfies 3 of the 4 Footnote Four factors, so there is a good argument for strict scrutiny. But she believes lawyers should go for intermediate level scrutiny, like for gender.
(She also believes sexual orientation should move to intermediate level scrutiny because it’s more like gender, but it's currently LLSWAB.)
47
Romer v. Evans
Invalidated Colorado initiative
Important, because it is the first time the court invalidated discrimination based on sexual orientation.
They used rational basis review. (But now sexual orientation is LLSWAB)
48
Footnote 4 criteria
Transgender
1. History of discrimination
1. Yes, but they've been able to hide
2. Obama lifted the ban in 2010 because "it was wrong"
2. Immutable?
1. This one is hard. Don't figure out that you're transgender until early childhood
2. when you transition, you can't hide it
3. Ability
1. reproduce? TG men can get pregnant
2. serve in the military? yes
4. Political powerlessness?
1. yes, only 1-2% of population is TG
If 3 out of 4, you get strict scrutiny, theoretically. With LLSWAB you get the result you want, but not the respect you deserve. She would try for intermediate scrutiny.
49
Is the right to marry fundamental?
Yes
50
All Equal Protection issues can be broken into 3 questions:
(the analysis)
1. what is the classification?
1. facial or
2. neutral (requires purpose)
2. what level of scrutiny should be applied?
3. does the particular govt action meet the level of scrutiny?
51
How does the court evaluate the fit between the govt's means and its ends?
Underinclusiveness and overinclusiveness
Strict scrutiny: must be a close fit
52
if Undocumented Child is Denied a Free Public Education
Intermediate scrutiny
See Plyler v Doe
53
Griswold
About contraception for married person. First case to recognize a right to privacy78u09-
54
traditional two-step analysis for determining whether a fundamental right exists under the Due Process Clause
(1) “history and tradition.” whether the right is objectively, deeply rooted in U.S. history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if the right is sacrificed; and
(2) whether a careful description exists of the fundamental liberty interest.
55
2 different tests for substantive due process
Is there a fundamental right?
1. Rehnquist's traditional test (rooted in history, carefully described)
2. Kennedy's test from Lawrence... Liberty in keeping with the times
56
sexual orientation level of scrutiny
LLSWAB
Burden is on the Govt
57
Roe v Wade
* author: Blackmun
* established trimester system
* strict scrutiny
* 1st trimester: absolute right
* 2nd: can regulate to protect health of woman
* 3rd: can regulate to protect potential life
58
Casey
* O'Connor, Kennedy, and Souter wrote a joint opinion (only one in history of SCOTUS)
* O'Connor writes:
* that a woman has the unimpeded choice of whether to terminate until the moment the fetus becomes viable.
* The state has the right to protect fetal life from the point of viability. Except if the woman’s life/health is at stake
* Gutted the trimester system of Roe
* Upheld waiting periods that were previously stricken down
* informed consent: this is ok
* spousal consent and notification: NOT OK
* parental notification: ok, but with an exception to seek permission from a judge
* For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."
59
Gonzalez
Banned partial birth abortions. O'Connor had left the court.
60
Whole Women's Health
* Constituted undue burden
* admitting privileges requirement
* surgery center requirement
* Author: Breyer
* June Medical Services did not follow this precedent
61
June Medical Services
* Louisiana
* Could overturn Whole Women's Health
* About admitting privileges
* Kavanaugh dissented as to the stay
62
1st amendment
religion
establishment clause
**lemon test**
* purpose
* the state must have a legitimate secular purpose
* effect
* the principal or primary effect must neither advance nor inhibit religion
* entanglement
* there must be no excessive govt entanglement with religion
63
1st amendment
religion
establisment clause
general principles
* wall of separation
* neutrality principle
* it does not require the state to be adverse to religion
* religious displays
* if they serve a secular purpose, like showing history, they might survive
64
1st amendment
free exercise clause
* forbids the outlawing of any religious belief
* but "action" can be regulated
65
Religion and Equal Protection
She is hypothesizing that Religion can be a protected class under Equal Protection.
FN 4
* History of persecution? Yes
* Immutability? Yes, a matter of choice
* Ability? Do you have the same ability given your religious faith compared to anyone else? Mostly
* Politically powerless?
66
What is the test to establish a protected class?
Footnote 4
* history of persecution
* immutability
* ability
* political powerlessness
67
The free exercise of religion
What rights?
* Absolute rights
* Religious belief
* Probably absolute, but still defining
* Religious worship (Santeria lahaina case)
* Religious ministry (hiring/firing) (Hosanna Tabor case)
* Non-absolute right
* Religious conduct
* Strict: santeria (because the law was aimed directly at them)
* Low-level: smith case (peyote)
68
The free exercise Clause
The Smith Test
(peyote)
A _neutral and generally applicable law_ does not need to be justified by a compelling governmental interest _even if it has the incidental effect_ of burdening a particular religious practice. Rational Basis.
69
The establishment clause tests
There are NO levels of SCRUTINY
* lemon (brennan)
* penalty (Scalia)
* does it penalize conduct or criminalize religion?
* coercion (Kennedy)
* look through the eyes of children
* endorsement (O'Connor)
* would the reasonable observer think it was an endorsement of religion?
70
Free Speech
If a law is vague or overbroad
Stop the analysis there. It's struck down
71
Commercial Speech
Intermediate level scrutiny
(Only applied to commercial speech)
Substantial govt interest
Means must directly advance the end of a commercial transaction
Means must be narrowly tailored to the end
72
High Value Speech
Strict Scrutiny
High value
* Political
* Artistic
* Offensive (or vulgar)
* Etc
73
Low value speech
Can be regulated.
* Inciting words
* Fighting words
* Obscenity
* Child pornography
* Obscenity as to minors
74
Free speech
Content or viewpoint based classification
triggers STRICT SCRUTINY
75
Commercial Speech
* Where a speaker offers to a listener a product at a price
* Only triggers INTERMEDIATE scrutiny
* If the govt is trying to stop the speaker from selling the goods to the customer, can the govt stop the speech? Must have a “substantial govt interest”
* Tends to survive the application of Intermediate level scrutiny
76
Free speech
Content-based classification
* A statute can’t regulate just some fighting words. Must regulate all of them.
* There are no hate-speech statutes in california. Scalia wiped them out, and made it impossible to write hate-speech legislation because it’s “content-based” if it doesn’t cover ALL of the category.
* However, a legislature can regulate just one word. Or just one act of speech (like cross burning)
77
Free speech
test for obscenity
* prurient, sex act, value
* (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest;
* (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
* (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
78
Strict Scrutiny
Burden on State
Covers 3 areas
* suspect classifications
* race
* alienage
* national origin
* fundamental rights
* protected 1st amendment rights
79
Strict Scrutiny
Fundamental Rights
* right to vote
* right to travel
* right to privacy
* contraception
* abortion
* marriage
* procreation
* private education
* family relations
80
Undue burden test
the standard from Casey
81
Right to physician-assisted suicide
The right to physician-assisted suicide is not a constitutionally-protected liberty interest under the Due Process Clause of the Fourteenth Amendment.
82
Strict Scrutiny
* Burden of proof on govt
* Compelling state interest
* Means necessary to ends
83
Intermediate Scrutiny
* burden on govt
* Important governmental objective (I.G.O.)
* Means substantially related to ends
84
Low level scrutiny
rational basis
* burden is on the challenger
* legitimate government purpose
* means rationally related to the ends
