Merkel essay guide Flashcards
(10 cards)
State A has enacted law that discriminates on Class C from Class D.
Analysis structure?
- Favored & disfavored class? If yes, then EP analysis with 3 standards of review.
- Does the act restrict an “unwritten” sub. DP right? If yes, argue substantive unwritten DP right.
- Is there expressive conduct? If yes, then Spence. If pass Spence, then O’Brien.
The act discriminates on a favored and disfavored class. let’s say married and unmarried persons. Its a divorce state.
EP
1. Suspect class? Race, National origin, Alienage [Then Strict Scrutiny]
- Quasi-suspect? Gender, Parents of kid [Then I.S.]
- None of above? Then RBR.
The act potentially violates an unwritten right. IE: A “liberty.” Example, right to marry, contraception, intamacy, etc.
Argue substantive due process citing old cases.
1. Deeply rooted NH and T
2. Essential to nations scheme of ordered liberty
3. Prenumbra [Douglas in Griswold]
4. Dobbs historical analysis [if it helps]
4. Human dignity and autonomy [Obergfell]
If during your EP analysis you determine that the disfavored class is not suspect or quasi suspect you are stuck with RBR. How to beef it up?
RBR w/ bite:
1) Animus [Rover v evans]
2. Hostility for hostility sake
Both of these shift burden to gov. If they cannot show purpose other than above, it is per se irrational and fails.
Suspect classes under EP analysis?
- Race
- national origin / alienage
- Religion
Quasi-suspect class under EP analysis?
- Parents of kid born out of wedlock
- Gender
Brennan [gov] v. Ginsberg [exceedingly persuasive justification from gov]
Non suspect classes?
Those that don’t fit suspect or quasi suspect which is left with RBR. Argue for “bite” if irrational animus or hostitility for hostilty sake.
If gov fails RBR with bite test?
Per se irrational and fails
Constitutional right to travel found where ?
P&I of 14A [Saenz v. Roe]
Who has constitutional right to travel? Citizens? Persons?
Persons.
