Equal Protection

How to analyze any constitutional claim (order)

1. Is there government action (state action)? 2. Which clause or right is at issue? 3. What level of scrutiny applies? 4. Does the government interest and means fit satisfy that level? 5. Conclude and note the strongest counterargument.

EP analysis: step by step

1. Identify the classification (facial, discriminatory application, or discriminatory purpose). 2. Identify the group or right affected. 3. Choose the level of scrutiny. 4. Apply: interest first, then means fit. 5. Conclude.

Rational basis: elements and burden

Legitimate governmental interest AND rationally related means. Challenger bears the burden. Court may hypothesize any conceivable purpose, even one the legislature never stated. Underinclusive and overinclusive laws usually survive.

Rational basis with bite (when it appears)

Courts apply rational basis more skeptically when the law rests on animus or irrational prejudice toward an unpopular group. Cases: Moreno, Cleburne, Romer, Plyler.

Animus rule

A bare desire to harm a politically unpopular group is never a legitimate governmental interest (Moreno, Cleburne, Romer, Windsor).

Intermediate scrutiny: elements and burden

Important governmental objective AND means substantially related to it. Government bears the burden. Justification must be genuine and not invented for litigation, and cannot rely on overbroad generalizations (VMI).

Strict scrutiny: elements and burden

Compelling governmental interest AND narrowly tailored means. Government bears the burden. Narrow tailoring means necessary, with no less restrictive alternative that would work.

Which classifications get which scrutiny

Strict: race, national origin, state alienage, fundamental rights. Intermediate: sex and gender. Rational basis: age, wealth, disability, sexual orientation (generally), most economic classifications. Federal alienage rules: rational basis.

Facial classification

The law's text classifies by a protected trait. Analyze directly under the scrutiny level for that trait.

Neutral law, discriminatory application

A neutral law applied with an evil eye and unequal hand violates EP (Yick Wo).

Neutral law, discriminatory purpose

A neutral law passed because of its discriminatory effects triggers heightened scrutiny. Plaintiff must prove intent (Washington v. Davis, Arlington Heights, Feeney).

How to prove discriminatory purpose

Evidence: clear pattern unexplained on other grounds, historical background, sequence of events, procedural and substantive departures, legislative history, statements by decisionmakers. Disparate impact is relevant but rarely enough alone.

Arlington Heights burden shifting

Plaintiff shows discrimination was a motivating factor. Burden then shifts to government to show it would have made the same decision anyway.

Race classifications: base rule

All racial classifications by any government get strict scrutiny, whether invidious or benign (Adarand, Croson, Johnson v. California).

Affirmative action rules after SFFA

Race-conscious admissions fail strict scrutiny: interests (diversity benefits) must be measurable, race cannot be used as a negative or stereotype, and programs need a logical endpoint. Individualized consideration of how race affected an applicant's life is still allowed.

Strict scrutiny interests accepted for race

Remedying identified past discrimination by the government itself (Croson). Diversity in higher education was accepted in Grutter but not sustained in SFFA. Mere societal discrimination is not enough.

Race-based districting rule

If race was the predominant factor in drawing a district, strict scrutiny applies (Shaw v. Reno, Miller v. Johnson). Bizarre shape is evidence but not required.

Political process doctrine

Laws that restructure the political process to burden minorities seeking race-related legislation get strict scrutiny (Hunter, Seattle). Narrowed by Schuette.

Segregation remedies: base rules

Desegregate with all deliberate speed (Brown II). Interdistrict remedies require an interdistrict violation (Milliken). Court decisions bind states (Cooper v. Aaron).

Sex classifications: base rule

Intermediate scrutiny: important objective, substantially related means (Craig). Government needs an exceedingly persuasive justification (VMI). Stereotypes and overbroad generalizations cannot justify the law.

Sex classifications: what survives

Real biological differences can justify differences (Michael M., Nguyen). Remedial classifications for past discrimination against women can survive (Webster). Archaic stereotypes fail (Reed, Frontiero, Goldfarb, Morales-Santana).

Transgender and gender-affirming care (Skrmetti)

Law that classifies by age and medical use, not sex or transgender status, gets rational basis. The Court did not decide whether transgender status is quasi-suspect.

Sexual orientation: where doctrine stands

No court-declared suspect class. Laws based on animus fail rational basis (Romer). Moral disapproval alone is not enough (Lawrence). Same-sex marriage is a fundamental right (Obergefell).

Alienage: rules

State classifications against lawful resident aliens get strict scrutiny (Sugarman) unless they involve political functions (political function exception). Federal classifications get rational basis. Undocumented children and education: heightened review (Plyler).

Wealth classifications: base rule

Wealth is not a suspect class, and rational basis applies unless a fundamental interest is also burdened (Rodriguez, Dandridge). Voting cannot depend on wealth (Harper).

Disability classifications: base rule

Rational basis. Disability is not a suspect or quasi-suspect class (Cleburne), but irrational prejudice fails even rational basis.

Fundamental interests under EP: how to analyze

Step 1: Does the classification burden a fundamental interest (voting, access to courts, interstate travel, procreation, marriage)? Step 2: If yes, strict scrutiny. Step 3: If no, rational basis.

Voting rights as fundamental interest

Strict scrutiny for burdens on voting qualifications (Kramer, Dunn, Harper, Reynolds, Williams v. Rhodes). One person, one vote for legislative districts.

Access to courts rule

Government cannot condition basic access to courts or appeals on ability to pay when the interest is fundamental (Griffin, Douglas, Boddie, M.L.B.).

Right to travel rule

Residency waiting periods that penalize interstate movement get strict scrutiny (Shapiro, Dunn). Saenz: new residents are entitled to the same benefits as longtime residents under Privileges or Immunities.