Equal Protection

Requirements for Equal Protection Clause (EPC) violations

1)      State action – prerequisite for:

• Equal Protection

• Due Process

• 14A P or I claims

• ***NO 14A S1 claims against private actors! (unless acting as the state!)

2)      State of mind: requirement for Equal Protection violations

• Discriminatory intent (Davis)

• Doesn’t need to be explicit (but that makes it easy)

• Discriminatory effect is NOT enough alone –

  • Effect may be enough for some federal laws to violate EPC

  • Effect may be powerful evidence of EPC intent and violations.

Standards of Review for EPC

a)      Strict Scrutiny (aka “fatal in fact” – very high bar)

• Law serves a compelling governmental interest

• Law is narrowly tailored to further that interest.

• Burden is on the govt to show.

  • Compelling govt interest is narrow – not necessarily infinite time, think safety of those in govt care or preventing domestic disturbance or inalienable rights.

  • Narrowly tailored: need a way to evaluate, need some metrics on discriminatory effects, only applied as long as necessary. (Harvard)

Intermediate Scrutiny (not as high – but still high bar)

• Law serves an important governmental interest

• Law substantially furthers AND is closely related to govt interest

• Burden is on the govt to show’

Rational Basis Review (courts are very deferential – low bar)

• Law serves legitimate govt purpose or interes

• Law employs rationally related method or means to achieve it.

• Burden is on govt – BUT generally a presumption of validity.

• Heightened rational basis:

  • where a class is not protected and gets rational basis review instead

  • court generally refuses to recognize discrimination or animus as a rational/reasonable reason for the policy animus. (disability, age, sexual orientation etc)

  • Burden generally on the State to show evidence that animus or stereotype NOT the basis of the policy justification.

What receives strict scrutiny

i)        Race (no matter the reason) (suspect class)

• Alienage/nationality (suspect class)

  • State laws: general rule – alienage is a suspect class (bc this is federal territory. Fed laws on this get rational basis)

  • Political Function exception: if the issue is on employment or similar that requires US citizenship for a uniquely relevant reason (NOT for state benefits alone) – can discriminate on alienage.

• States performing immigration/citizenship discrimination.

  • Illegal immigrants NOT a suspect class BUT are persons under 5A and 14A.

iii)    Fundamental rights (classification burdens rights and creates disparate class impacts)

• Not broadly construed – Bill of Rights interests and the following.

• Must be explicitly or implicitly covered in the Constitution (San Antonio School v Rodriguez)

• Voting

  • General rule: everyone has to be allowed to vote – unreasonable restrictions on voting fail scrutiny.

  • Poll taxes: unreasonable under 14A EPC (violation of class) (strict scrutiny)

  • Photo ID: if evenhanded – OK

  • 50-day residency requirement: OK – not too onerous (but see Dunn, where one year was too much)

• Marriage

• Right to travel: Strict Scrutiny where they create separate classes.

  • Welfare benefits waiting period of one year – NO (too long, unduly burdens fundamental right to travel) (Shapiro)

  • Travel and voting period unreasonable in light of state’s voting process – NO (too long, burdens fundamental voting and right to travel – not narrowly tailored) (Dunn)

  • Basic necessities (one year residence to access to medical care) – NO, does not further a compelling state interest.

  • NOT Non-essential services with residency requriements that receive only rational basis: Tuition residency, divorce residency.

• Needs to be a total bar or significant bar: likely to invoke strict scrutiny

ii)      Other considerations that could get there:

(1)   history of animus toward the class

(2)   legislative history of discrimintation

(3)   immutable characteristic of the class.

What gets Intermediate Scrutiny

i)        Gender (suspect class)

(1)   ***NO stereotypes or generalizations allowed in law on basis of sex – probably fails even rational basis test. (Reed)

(2)   Requires exceedingly persuasive justification (gender) (US v Virginia)

ii)      Wealth and poverty CAN fall here IF burdens/requirements to pay for rights on fundamental category (voting, marriage, etc)

What gets Rational Basis

i)        Police powers generally (ex: economic regulations post-Lochner)

ii)      Age

iii)    Disability (but – general rule is hostility and stereotypes get heightened rational basis)

(1)   Govt policy that lacks evidence adequately explaining why disability, age, etc should be treated different by the law fails reasonable plank of rational basis (City of Cleburne, Romer)

iv)    Federal alienage and nationality laws (Congressional immigration and naturalization powers).

Sexual orientation/Same sex marriage

a)      since Romer and Lawrence and Obergefell, moving toward heightened scrutiny, perhaps protected class.

i)        Rule: animus or moral disapproval is NOT a rational basis. (Heightened rational basis)

Benign Discrimination

i)        Laws that impose differential treatment on basis of gender do not violate equal protection IF reasonably designed to further legitimate state interest – if on gender, probably need to show exceedingly persuasive justification (such as a demonstrable and still relevant gender gap from provable data and long-running classification discrimination).

ii)      Stereotypes do not provide a rational basis for policy.

iii)    For gender discrimination – exceedingly persuasive justification.

Affirmative Rights

i)        Complaint asserts state has a duty to do something – contrasts with suspect class and fundamental rights cases that assert that states CANNOT do something.

ii)      Welfare:

(1)   Rule of thumb: only strict scrutiny when it implicates a fundamental right (esp. right to travel). Otherwise – rational basis.

(2)   Classifications NOT subject to fundamental rights or suspect classes are permissible under 14A EPC w/rational basis. (Dandridge)

(3)   School resources: not a fundamental right, not a suspect class. Rational basis. (San Antonio Schools v Rodriguez)

(a)   BUT where animus or discrimination against a group (undocumented children) is the basis of policy – heightened rational basis (Plyler v Doe)