State Action, Equal Protection, and Due Process Flashcards
When an Equal Protection, State Action, or DP Issue Arises
If the question involves alleged deprivation of the equal protection or fundamental rights, such as the right of free speech or free exercise of religion under the 1st Amendment, there must first be government or state action.
State Action (Types)
(1) A law, ordinance, or regulation
(2) a government actor (such as agency or employee);
(3) a private actor engaged in traditional exclusive public functions; and
(4) a private action with significant state involvement, encouraging or facilitating the private action.
Equal Protection (Step One)
Ask whether the government intends to discriminate. There are three kinds of intent: facial discrimination; a discriminatory purpose; or the law is being discriminatorily applied.
Equal Protection (Step Two)
In identifying the intent to discriminate, characterize the groups being treated differently, is it by race, or gender, or residency, or something else?
Equal Protection (Step Three)
Depending on the classification, state the appropriate test, including who has the burden:
(1) Strict scrutiny when a suspect classification (race, national origin, and alienage) or fundamental liberty is involved.
(2) The intermediate test is used when a classification is based on gender or legitimacy.
(3) The rational basis test is used whenever the other two standards are not involved.
Strict Scrutiny
The government then has the burden of proving that the law is necessary to achieve a compelling state interest. Meaning there is no less restrictive alternative, or that the law is narrowly tailored, which means it neither covers more people or conduct than is necessary to achieve its purpose or less people or conduct than is necessary to achieve its purpose.
Intermediate Test
For a classification to withstand intermediate scrutiny, the government has the burden of proving that the law is substantially related to achieve an important state interest. This requires a close fit between means and ends.
Rational Basis Test
The challenger has the burden of proving that the law is no rationally related to a legitimate state interest.
How to Apply The Tests
(1) What is the government purpose?
(2) Is the government purpose compelling/important/legitimate?
(3) Is the classification or law necessary to/substantially related to/rationally related to achieving the government purpose?
Substantive Due Process (Definition)
Substantive Due Process involves government infringement of liberty interests. If the infringed liberty interest is fundamental, the applicable test is strict scrutiny.
Fundamental Liberty Interests
Include:
(1) travel
(2) privacy
(3) voting
(4) all first amendment rights including the right of traditional only families to live together.
When an interest is fundamental, apply strict scrutiny.
Abortion Test
Does the government regulation of some aspect of abortion constitute an undue burden on a woman’s right to choose whether to carry the child to term?
