Sex Discrimination/ Alienage Discrimination/ Other Classifications Flashcards
(21 cards)
What level of scrutiny for Sex-based discrimination?
Intermediate Scrutiny.
What is Intermediate Scrutiny?
- Important governmental objectives, and
- Must be substantially related to achievement of those objectives
2 ways of proving the existence of a Gender Classification
(1) The Gender classification can exist on the face of the law
(2) If a law is facially gender neutral, proving a gender classification requires demonstrating that there is BOTH
- A discriminatory impact to the law AND - A discriminatory purpose behind it.
Must be proof of a discriminatory purpose
Who is the burden on for Intermediate Scrutiny?
Burden on the Government, but not as tough as Strict Scrutiny.
If distinction between actual difference between men and women?
If there is an actual difference, likely will be upheld
What is really the only classification that hasn’t been set yet?
Sexual-Orientation
Frontiero
Use when you want to argue heightened review
Frontiero Test
Look to:
- Current/Historical Discrimination against the group
- The Immutability
Is it changeable? → Age
Or not → Race - The Political Power of the Disadvantaged Group
- No relationship between the characteristic and ability to contribute
- Does it matter for the purpose of discriminating? Relevant for the purpose?
What does the State Argue?
- R.B.R. (Gov. action upheld)
- Even if heightened review, Gov. action satisfies the review.
What does the Plaintiff Argue?
- Frontiero Factors
- Gov. action fails heightened review
- If we don’t win under Frontiero, still fails RBR. (“Romer/Moreno” & “Beating up on group”)
What level of Scrutiny does Alienage Classification get?
STRICT SCRUNTINY (Unless)
(1) States can discriminate in alienage in hiring police officers
(2) States can discriminate by alienage in hiring public school teachers
(3) States can discriminate by alienage by hiring probation officers
* (4) States CANNOT discriminate w/ regard to alienage when hiring notary public because it is not a critical position to our democracy.
Non-Marital Children Discrimination
Intermediate Scrutiny is applied
2 Major Principles for Non-Marital Children
(1) Laws that provide a benefit to all marital children, but no nonmarital children, always are declared unconstitutional.
(2) Laws that provide a benefit to some nonmarital children, while denying the benefit to other nonmarital children, are evaluated on a case-by-case basis under intermediate scrutiny.
Age, Disability, and Wealth?
Rational Basis Review
Plyer v. Doe (Another way to argue RBR)
RBR WITH BITE!!!!!!!!
When something is a loser by itself under RBR, such as Public Education, use Plyer 2 part balancing test:
(1) Find the kind of classification
(2) Find the underlying interest involved
AND BALANCE THE TWO TO GET TO THE LEVEL OF SCRUTINY TO APPLY!
Why can the State discriminate against Aliens in regards to hiring?
Because the three positions are important positions in our democracy, so can be reserved for Citizens if State decides.
Law distinguishing between marital and non-marital children.
The law is likely to be invalid.
Law distinguishing between non-marital children only.
The Court will apply intermediate scrutiny in evaluating the law.
Will a law be upheld if it is based on sex steerotypes and ideas of romantic partialism?
NO
- If law is made to “protect” women most likely struck
- If law is a sterotype, most likely will be struck
If a law is because of an actual difference between men/ women will it be upheld
YES
- if actual difference between man/woman most likely be upheld
Can government use affirmative action programs on sex to remedy sociality discrimination against woman?
YES
- Sex based affirmative action CAN be designed to remedy effects of prior SOCIALITY discrimination against woman
- important enough to remedy effects of prior discrimination of socierally
