Facial Discrimination
The law is discriminatory on its face
Purpose Discrimination
The law is not discriminatory on its face but has a discriminatory effect when applied
Strict Scrutiny
Only Satisfied if the government act is
- necessary to acheive ( there must be no less restrictive alternatives)
- a compelling government interest (i.e. national security (Korematsu), racial discrimination in public education, racial discrimination in employment
Over/Under Inclusiveness
If the law includes too many or does not include enough, then it doesn’t meet strict scrutiny
Strict Scrutiny Burden
The Burden is on the government to prove with actual evidence, not just assertions.
Strict Scrutiny, suspect classifications, fundmental rights
Strict scrutiny applies in situations of suspect classifications or fundamental rights
Suspect classifications are specific groups that are powerless to protect itself through political process; the action is not being done to a larger group
Race and national origins, strict scrutiny
- If a law is facially discriminatory, then it is subject to strict scrutiny
- If a law is facially neutral but has a discriminatory impact, there must also be a discriminatory motive in that it was intended to discriminate
- Washington v. Davis: African American police offiers argued that the hiring test is discriminatory ; discriminatory impact but it wasn’t done intentionally so there is no discriminatory motive
- Affirmative Action triggers strict scrutiny. Affirmative action can only be used as one factor of many. Will only be justified if it is to remedy past discrimination
Aliens (state only)
- State discrimination is subject to strict scrutiny
- Federal laws are not governed by strict scrutiny, but rational basis. (the federal government acts from soverignty)
Fundamental Rights
Anything related to fundamental rights gets heightened scrutiny.
Family autonomy, procreation, sexual activity, sexual orientation, medical care decision making, travel, voting, access to the courts, and the right to bear arms
Freedom of expression
Strict scrutiny is used if the government is regulating content-based speech. Regulated some speech but not others based on the content of the message is only valid if its necessary to achieve a compelling government interest.
Intermediate Scrutiny
Intermediate scrutiny will only be satisfied if the government act is
-substantially related to
-an important government purpose
The burden is generally on the government
-Over/Under Inclusiveness: analysis hinges on if the law includes too many or does not include enough. For IS, there does not have to be as tight a fit for SS
Intermediate scrutiny applies to situations of semi-suspect classifications
- Gender
- Non Marital children
- Undocumented aliens and education
- Freedom of expression
Gender and IS
- Different from racial discrimination because women are not a minority, and there are biological differences.
- If a law is facially discriminatory, then it is subject to intermediate scrutiny.
- If a law is facially neutral but has a discriminatory impact, there must also be a discriminatory motive in that it was intended to discriminate. If the law meets all three, then it will get struck down.
- Laws beneifting women are not valid if they are based on stereotypes (i.e. alimony)
- Laws are valid when they remedy past discrimination
Non-marital Children
- Different from other classifcations because there is no obvious badge of identification, but there is a history of discrimination.
- Discrimination between legitimate and non-legitimate children, or non-legitimate children and non-legitimate children is analyzed under intermediate scrutiny.
Undocumented aliens and education
- Denying free public education to undocumented immigrant children is not allowed because they have no choice in coming to the United States.
- No Strict scrutiny because undocumented aliens are not a suspect class and education is not a fundamental right
Freedom of Expression
Intermediate scrutiny is used if the government is regulating speech that is not content-based. ( i.e. time, place, and manner regulations)
Rational Basis
rational basis will be satisfied if the government act is
-rationally related (government cannot act in an arbitrary and irrational way)
-to a legitimate government purpose (broad: health, safety, and general welfare of the people; not prohibited by the Constitution
The burden is on the challenger of the law
-must prove that it is completely illogical and does not make any sense.
Over/Under-inclusiveness does not apply.
Rational Basis and classifications
Rational basis applies as long as there is no suspect or semi-suspect classification, and no fundamental right is impaired (i.e. age, disability, poverty, sexual orientation).
If the government is doing something because they dislike it or it is based off stereotypes, it is irrational and does not pass rational basis
Framework for Fundamental Right analysis
- Is there a fundamental right
- Is the constitutional right infringed
- Is there sufficient justification for the government’s infringement of a right.
- Is the means sufficiently relate to the purpose.
