Equal Protection

Question 1

General considerations

Answer 1

1. Constitutional basis—14th Amend. Equal Protection Clause for states and 5th Amend. Due Process Clause for federal government
2. Standards of review (depends on classification of persons or type of right)
   • Strict scrutiny (least restrictive means to achieve a compelling governmental interest)— applies if fundamental rights or suspect classification involved
   • Intermediate scrutiny (substantially related to important governmental interest)— applies if gender or legitimacy involved
   o Gender cases require “exceedingly persuasive justification” for the classification
   • Rational basis (rationally related to legitimate governmental interest)—applies when higher standards do not apply
   o Applies to laws distinguishing people based on age, wealth, weight, and distinctions drawn for business reasons
3. Proving discrimination—Discriminatory intent on government’s part necessary to trigger strict or intermediate scrutiny
   • Discriminatory on its face—law that creates distinctions between classes of persons by its very language
   • Discriminatory application—neutral on its face, but applied in discriminatory fashion
   • Discriminatory motive—disparate impact coupled with proof of discriminatory motive/intent

Question 2

Suspect classifications

Answer 2

Strict scrutiny – law must be least restrictive means to achieve a compelling governmental interest

1. Race, ethnicity, national origin
   • School integration—De jure (intentional) segregation violates Equal Protection clause
   • Programs favoring racial or ethnic minorities (affirmative action) subject to strict scrutiny; must be regularly evaluated
2. Alienage (in some cases – depends on level of government and nature of classification)
   • Federal classifications valid unless arbitrary and unreasonable
   • Strict scrutiny applied to state laws that discriminate against aliens
   o Exception for state restrictions on resident alien’s participation in government functions – rational basis standard applied

Question 3

Quasi-suspect classifications

Answer 3

Intermediate scrutiny – substantially related to important governmental interest

1. Gender
   • Need discriminatory intent by government (not just disparate impact)
   • Government must show “exceedingly persuasive justification” exists for gender distinction, and separate facilities must be substantially equivalent
   • Benign discrimination (affirmative action) permissible under intermediate scrutiny as remedy for past gender-based discrimination
2. Legitimacy
   • Legislation designed to punish nonmarital children will not be upheld

Question 4

Non-suspect classifications

Answer 4

1. Age
2. Poverty
3. Sexual orientation—Supreme Court has not resolved the issue of whether discrimination based on sexual orientation is subject to heightened scrutiny

Question 5

Fundamental rights unique to equal protection

Answer 5

i.e., no overlap with substantive due process
• “One person, one vote”
• Gerrymandering (based on racial or political discrimination) is unconstitutional