INTRODUCTION TO SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION

Question 1

RELATIONSHIP BETWEEN SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION

Answer 1

• DPCs & EPC guarantee fairness of law
• Substantive due process guarantees laws will be reasonable & not arbitrary, & equal protection guarantees that similarly situated persons will be treated alike.
• Both guarantees require Ct to review substance of the law rather than procedures employed.

Question 2

Substantive Due Process

Answer 2

• Where a law limits liberty of all persons to engage in some activity, it is a due process question.

Question 3

Equal Protection

Answer 3

• Where a law treats a person/class differently from others, it is an equal protection question
• Ex. equal protection claims may be brought by a class w/ as few as one member
• However, an at-will gov employee who claims to be a vic of arbitrary discrimination cannot use “class of one” theory to make an equal protection claim.

Question 4

Examples

Answer 4

• If a law prohibits all persons from purchasing contraceptive devices, there is a due process issue;
• If law prohibits only purchases by unmarried persons, there is an equal protection issue.
• A state’s refusal to have any publicly funded schools raises a due process issue;
• State law that establishes separate schools for children of different races raises an equal protection issue

Question 5

Note—Clauses Not Necessarily Mutually Exclusive

Answer 5

• Since both clauses protect against unfairness, both may be appropriate challenges to the same governmental act, & a discussion of both may be appropriate in an essay answer.
• On MBE, however, examiners will probably not include both as alternatives in same question.
• The above approaches can be used as a rough guideline of when each clause applies.

Question 6

WHAT STANDARD OF REVIEW WILL THE COURT APPLY?

Answer 6

• Ct employs 1 of 3 tests in reviewing laws under these clauses, depending on circumstances.

Question 7

Strict Scrutiny (Maximum Scrutiny)

Answer 7

• Strict scrutiny standard: a suspect classification/ fundamental right is involved.
• Law will be upheld only if it is NECESSARY to achieve a COMPELLING GOV purpose.
• Always consider whether less burdensome means for accomplishing legislative goal are available.
• Most governmental action examined under this test fails.

Question 8

Burden of Proof on Government

Answer 8

• Strict scrutiny standard: gov has burden of proving law is necessary.
• Ct will not allow a loose fitting law (if law reaches more people/conduct than necessary (overinclusive) or does not reach all the people/conduct sought to be regulated (underinclusive), it will likely be struck down).

Question 9

Alternative Strict Scrutiny Language

Answer 9

• SC’s language sometimes varies when expressing strict scrutiny standard.
• It commonly uses language such as “narrowly tailored to achieve a compelling government purpose”/“necessary to achieve an overriding government purpose” in addition to “necessary to achieve a compelling government purpose.”
• For bar exam purposes, these varying iterations all have the same meaning.

Question 10

Intermediate Scrutiny

Answer 10

• Intermediate scrutiny: classification based on gender/legitimacy is involved.
• Law will be upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT GOV purpose.
• Unclear who has burden of proof, but in most cases, seems to be gov

Question 11

Rational Basis (Minimal Scrutiny)

Answer 11

• Rational basis: used whenever other 2 standards are not applicable (i.e., most legislation).
• Law will be upheld if RATIONALLY RELATED to LEGIT INTEREST.
• It is difficult to fail this test, so most governmental action examined under this standard is upheld unless it is arbitrary/irrational.

Question 12

Burden of Proof on Challenger

Answer 12

• Rational basis standard: laws are presumed valid.
• Therefore, challenger has burden of proof.
• This is a very difficult burden to meet, given deference Ct gives to legislatures under rational basis standard. (See below.)

Question 13

Deference to Legislature

Answer 13

• Rational basis standard: Ct will usually defer to a legislature’s decision that a law is rational.
• Loose fitting laws are permissible here:
• The law need not be the best law that could have been written to achieve legislative goal.
• Indeed, it need not go far at all toward a conceivable legislative goal
• Ct will uphold a law taking a “first step” toward any legit goal, even if Ct thinks law is unwise.