Equal Protection Attack1

  1. Is there a state or governmental action that distinguishes among people?

Remember: a) this can be a rule or law; and b) this cannot be an action by a private person

  1. Is the law discriminatory on its face?
  2. If not, is there a discriminatory impact to the law and if is there any discriminatory intent (Washington v. Davis)?
  3. If there is no finding of a discriminatory intent, only rational basis will be applied.
  4. If there are both, go to the appropriate level of scrutiny.
  1. What is the appropriate level of scrutiny?
  1. Is the group being discriminated against a suspect or quasi-suspect class?
  2. [Suspect] Race (Loving v. VA), national origin (Loving), religion, and alienage (Graham v. Richardson) – strict scrutiny
  3. Alienage – 1) does the self-government exception apply? or 2) does the Congressional approval exception apply?
  4. [Quasi-suspect] Gender (Craig v. Boren), illegitimacy – intermediate scrutiny
  5. Marital status (but look for embedded discrimination on gender), Disability (City of Cleburne*), sexual orientation (Romer v. Evans*) – rational basis
  1. Do the factors from Carolene Products suggest a heightened level of scrutiny is warranted (or else give rational reason as to why discrimination against the group is inherently suspect)?
  2. Discrete and insular minority?
  3. Is the distinction based on an immutable characteristic?
  4. History of discrimination against the group?
  5. Unable to protect itself through the political process?
  1. Does the government action meet the level of scrutiny?
  2. Strict Scrutiny

Under strict scrutiny, a law is upheld if it is proven necessary to achieve a compelling government purpose. The government has the burden of proof and the law will be upheld only if the government persuades the court that it is necessary to achieve a compelling purpose.

  1. Intermediate Scrutiny

Is the lawsubstantially related to an important government purpose? The Court need not find the government’s purpose “compelling” but it must characterize the objects as “important.” The means used need not be necessary, but must have a “substantial relationship” to the end being sought.

There may be a third prong from U.S. v. Virginiain gender classifications. The law may be subjected to demonstration of “an exceedingly persuasive justification.”

  1. Rational Basis Review

Is the lawrationally related to a legitimate government purpose? This test is enormously deferential to the government and only rarely have laws been declared unconstitutional for failing to meet this level of review.

  1. Rational Basis Review
  1. Does the Law Have a Legitimate Purpose?

The government has a legitimate purpose if it advances a traditional “police” purpose: protecting safety, public health, or public morals. Virtually any goal that is not forbidden by the Constitution will be deemed sufficient to meet the rational basis test.

The Court has declared that under rational basis review the actual purpose behind a law is irrelevant and the law must be upheld “if any state of facts reasonably may be conceived to justify” its discrimination.

  1. The Requirement for a “Reasonable Relationship”

The law may be under- and over-inclusive and the government may act in “steps,” meaning they can enact a law discriminating against a certain group with the intention to regulate other groups in the future.

  • Under-inclusive (Railway Express v. NY), Under-inclusive (NY Transit v. Beazer)
  1. Rational basis with “bite”

Occasionally the Court has applied a somewhat heighted rational basis test; described as one with “bite.” The cases this has occurred with concerned: sexual orientation; congressional discrimination against hippies; and the mentally disabled.

Concerning disabilities: this is only applicable if the court finds that the discrimination is based on an animus towards those with disabilities; otherwise, normal rational basis is used.

  1. Strict Scrutiny

Classifications warranting strict scrutiny will be allowed only if the government can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling governmental purpose.

If strict scrutiny is used, the government will have to show that the means are necessary – the least restrictive alternative – to achieve the goal.

  1. Is the distinction a result of affirmative action benefiting minorities?

For affirmative action laws to pass strict scrutiny, the law must be directed at entities that are proven victims of past discrimination.

  1. Is the law directed at particular entities or sectors of the economy where discrimination has been proved to occur, but the beneficiaries are not themselves the proved victims?

It is unclear in this instance what the Court will say, make an argument for both sides comparing and contrasting to 1) proven victims and 2) recipients whose rights were not violated.

  1. [Is this a compelling interest?]Other categories of affirmative action:

(a) Enhancing diversity – may be a factor, not the determinative factor

(b) Providing role models - impermissible

(c) Enhancing services to minority communities – impermissible

  1. [Are the means narrowly tailored?] What technique of discrimination is being used in the affirmative action regulation?

(a) Numerical set-asides? – permissible only if needed to remedy proven past discrimination

(b) The distinction (e.g., race or religion) as a factor? – permissible as one factor in education and universities (no quotas allowed)

(c) Redrawing election districts? – permissible if for political reasons (e.g., African Americans in North Carolina are predominantly democratic)

  1. Intermediate Scrutiny

Under intermediate scrutiny, a closer fit, less underinclusiveness or overinclusiveness, will be required than under the rational basis test.

There may be a third prong from U.S. v. Virginia in gender classifications. The law may be subjected to demonstration of “an exceedingly persuasive justification.”