Con Law II - Equal Protection

The elderly are not a suspect class.

Accordingly, laws that classify on the basis of age are subject only to rational-basis review. Massachusetts Board of Retirement v. Murgia (1976). Laws that discriminate on the basis of disability are subject to rational-basis review. In assessing such laws, however, the court has sometimes applied a form of rational-basis review that is substantially more searching than the ordinary version of that approach. Cleburne v. Cleburne Living Center (1985).

M.L.B. v. S.L.J. (1996) addresses whether a state can condition the availability of a civil appeal on the appellants advance payment of costs.

Facts: Petitioner and respondent are the unmarried biological mother and father of two children. After S. L.J. married, they filed suit seeking to terminate the parental rights of M.L.B. and gain court approval for adoption of the children by their stepmother. The court terminated all parental rights to the mother and approved the adoption. Mississippi grants civil litigants a right to appeal, but conditions that right upon prepayment of costs. Holding: The Court overturned this law because it violated the Equal Protection Clause of the Fourteenth Amendment by denying access to courts to those who could not afford to pre-pay the costs.

The Court in Harper did not declare the poor as a suspect class.

However, they deemed the right to vote is so important that it deserved heightened scrutiny. Not sure what test is applied by the court. Could be strict scrutiny because the Court states that classifications which might invade or retrain them must be closely scrutinized and carefully confined. Could be rational-basis because the Court said that the states interest in this case is not in raising money, the only legitimate interest a state has in the voting process is fixing and figuring out who is qualified to cast a vote. Paying $1.50 has no relation to that interest. Any law that impairs the right to vote gets strict scrutiny except where the state is ensuring voting qualifications. There, rational-basis will be applied.

All legal restrictions which curtail civil rights of a single racial group...

are immediately suspect. Korematsu v. United States (1944).

Strict scrutiny applies to laws that discriminate on

the basis of race or national origin on their face, Strauder v. West Virginia (1879), to laws that are motivated by discriminatory purpose against persons based on their race or national origin, Hunter v. Underwood (1985), and to discriminatory application, based on race or national origin, of otherwise facially neutral laws, Yick Wo v. Hopkins (1886). Standing alone, however, racially disproportionate impact "does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations." Washington v. Davis (1976).

Laws that classify on the basis of race but are facially symmetrical

- that is, laws that impose equal burdens on persons of different races - are also subject to strict scrutiny. Accordingly, laws prohibiting inter-racial marriage, Loving v. Virginia (1967), and the laws providing for "separate but equal" public facilities, Brown v. Board of Education of Topeka (1954), are unconstitutional.

Strict Scrutiny

A law is upheld only if it is "narrowly tailored" to advance a "compelling" government interest. Adarand v. Pena (1995). Strict scrutiny typically applies when the challenged law makes a distinction based on: Race; National origin; Alienage; or Legislation affecting access to political process.

Rational Basis Test

A law will be upheld if it is "rationally related" to a "legitimate" government interest. New York Transit Authority v. Beazer (1979). Three different types of rational-basis test. Default Rational Basis Test - Reasonably related to a legitimate governmental interest. Presumption of constitutionality (burden of challenger to prove not related to purpose. Williamson Rational Basis Test - Law passes if reasonable legislator could have thought it was reasonably related to a legitimate governmental purpose. Rational Basis Test with Teeth - There is no real presumption of constitutionality; court will look to see what the real purpose of the legislation is. Must be related to the legitimate governmental interest. Every challenged law that does not fit into one of the above categories fails under rational-basis test.

Access to Courts

Dandridge and Rodriguez seem to stand for the proposition that wealth is not a suspect for classification under the Equal Protection Clause. Yet Harper held that the state cannot condition the right to vote on the payment of a poll tax, because wealth "as a measure of a voter's qualification" is a capricious or irrelevant factor."

San Antonio Independent School Dist. v. Rodriguez (1973)

Facts: At the time of this litigation, approximately 40% of Texas's state education budget came from local property taxes. Texas law also imposed a ceiling on the local property-tax rate that any locality could assess. Mexican-American parents whose children attended the public schools of Edgewood Independent School District in San Antonio, Texas brought suit against various state officials challenging the funding scheme. Holding: Our task must be to ascertain whether the Texas system has been shown to discriminate on the basis of wealth and, if so, whether the resulting classification may be regarded as suspect. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection form the majoritarian political process. The Texas system of public school finance is an inappropriate candidate for strict judicial scrutiny and while there are conceded imperfections to the system, it nevertheless bears some rational relationship to a legitimate state purpose. Upheld.

Reynolds v. Sims (1964)

Facts: In 1961, Alabama voters brought a class-action lawsuit against state and political party officials responsible for conducting state elections, alleging that the apportionment of the Alabama legislature violated their rights under the Equal Protection Clause. Holding: Since the achieving of fair and effective representation of all citizens is concededly the basis aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. ii. We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.

Vieth v. Jubelirer (2004)

Facts: Plaintiffs, registered Democrats who vote in Pennsylvania, brought suit to enjoin implementation of legislation apportioning the state's federal congressional districts. The complaint alleged, among other things, that the legislation constituted political gerrymandering in violation of Article I and Equal Protection Clause of the Fourteenth Amendment. The complaint alleged that the districts were "meandering and irregular," and ignored all traditional redistricting criteria, including the preservation of local government boundaries, solely for the sake of partisan advantage. Holding: Lacking judicially discernable and manageable standards, we must conclude that political gerrymandering claims are non-justiciable and that Bandemer was wrongly decided. Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims.

Plyler v. Doe (1982)

Facts: The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens. Holding: Public education is not a right granted to individuals by the Constitution. But neither is it merely some governmental benefit indistinguishable from other forms of social welfare legislation. Education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests. If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it further some substantial state interest. No such showing was made here.

Right to Vote

Harper v. Virginia State Bd. of Elections (1966) Facts: Virginia residents filed suit declaring Virginia's poll tax unconstitutional under the Equal Protection Clause. Holding: Once the franchise is granted to the electorate, liens may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. The Court continued on to strike down the poll tax as unconstitutional under the Equal Protection Clause.

Apportionment and Gerrymandering

In Baker v. Carr (1962), the Court held that the Equal Protection Clause provides discoverable and manageable standards for use by lower courts in determining the constitutionality of a state legislative apportionment scheme.

Voter ID Laws

In Crawford v. Marion County Election Board (2008), the Court considered a challenge to Indiana's Voter ID law, which required the presentation of photo identification issued by the government as a prerequisite to voting. The plaintiffs argued that the law imposed a substantial burden on elderly, disabled, poor, and minority voters, who are less likely to have the requisite forms of identification. The Court upheld the law because there was no discrimination, there was only a disparate impact. However, requiring additional identification such as requiring a birth certificate may pose constitutional issues. Has not been litigated yet.

Racial vs. Political Gerrymandering

In Shaw v. Reno, the Court concluded that strict scrutiny applies to the use of race in redistricting, even when race has been used the likelihood that minority groups will be able to elect the candidate of their choice. Accordingly, claims of "racial gerrymandering" - the drawing of legislative district lines to benefit voters based on their race - not only are justiciable, but they also challenge a practice that is presumptively unconstitutional. In Davis v. Bandemer (1986), the Court considered a challenge by Indiana Democrats to a reapportionment plan passed by the Republican-controlled legislature and signed by the Republican Governor. The plaintiffs contended that the plan constituted a political gerrymander intended to disadvantage Democrats, but the Court rejected their challenge. The Court, after considering the factors identified in Baker v. Carr, concluded that the claim was justiciable but could not agree on a standard for assessing the plaintiff's claims.

Equal Protection Clause

Purpose is to prevent legislation that makes improper distinctions in applicability of laws to classifications of people.

Welfare and Education

The Court has established that you do not have a fundamental right to welfare. However, once a state has decided to give welfare, you may have Procedural Due Process protection if they decide to cut you off and may have an Equal Protection issue if they do not distribute it equally. If the state discriminates against a suspect or quasi-suspect class because the Court will apply strict scrutiny or intermediate scrutiny. Absent that discrimination, the Court applies rational-basis test.

Bollinger v. Sharpe (1954).

The Court has held that the Due Process Clause of the Fifth Amendment, which applies to the federal government, includes an equal protection component.

It is not entirely clear what level of scrutiny applies to laws that discriminate on the basis of sexual orientation.

The Court has, however, invalidated a state constitutional provision that prevented the government from extending its laws to protect persons from discrimination on the basis of sexual orientation. Romer v. Evans (1996). At least one member of the Court, moreover, has concluded that a law that criminalizes homosexual sex (but not heterosexual sex) violates the Protection Clause. Lawrence v. Texas (2003).

Intermediate Scrutiny

The Court will uphold a law only if it is "substantially related" to an "important" government interest. United States v. Virginia (1996). Intermediate scrutiny typically applies when the challenged law makes a distinction based on: Sex; Gender; or Legitimacy (born of marriage or not).

Buckley v. Valeo (1976); Adarand Constructors, Inc. v. Pena (1995)

The same standards apply to evaluate state and federal action under the equal protection principle.

laws, regulations, and policies that discriminate against racial minorities on the basis of race or national origin are

are subject to strict scrutiny - that is, they must serve a compelling governmental interest, and must be narrowly tailored to further that interest. Adarand Constructors, Inc. v. Pena (1995). This rule applies to the states by the force of the Equal Protection Clause of the Fourteenth Amendment, Strauder v. West Virginia (1879), and to the federal government by the force of the Due Process Clause of the Fifth Amendment, Bollinger v. Sharpe (1954).

Laws and policies that distinguish between conditions that are uniquely associated with one sex

do not on the basis alone necessarily trigger intermediate scrutiny, Geduldig v. Aiello (1974). Law or policies that treat men and women differently because of "real" differences between the sexes might survive intermediate scrutiny, Michael M. v. Superior Court of Sonoma County (1981), but not if the lines are drawn based on mere gender stereotypes, Orr v. Orr (1979); Mississippi Uni. For Woman v. Hogan (1982).

Neutral laws that were not motivated by discriminatory animus

do not receive intermediate scrutiny simply because they have a disproportionate impact on persons of a particular gender. Personnel Administrator of Massachusetts v. Feeney (1979).

However, policies that "establish quotas for members of certain racial groups

groups put on members of those groups on separate admissions tracks" fail strict scrutiny. Gratz v. Bollinger (2003). In addition, schools that have already achieved unitary status after desegregation efforts, or that were never segregated de jure, may not rely upon race to determine which schools children may attend. Parents v. Seattle School District No. 1 (2007).

The standard of review under the Equal Protection Clause is

not dependent on the race of those burdened or benefited by a particular classification. City of Richmond v. Croson (1989). Accordingly, strict scrutiny applies to government consideration of race even when it is designed to benefit, rather than burden, racial minorities. Adarand Constructors, Inc. v. Pena (1995). This rule applies to affirmative action programs in government contracting, City of Richmond v. Croson (1989), and school admissions, Grutter v. Bollinger (2003), and to legislative apportionment schemes for which race was a "predominant" factor in the drawing of district lines, Shaw v. Reno (1993); Miller v. Johnson (1995).

The Court has emphasized, however, that some race-conscious decision-making can

satisfy strict scrutiny. In particular, because public institutions of higher education have a "compelling interest in attaining a diverse student body," admissions policies that seek to achieve a "critical mass" of minority students by considering race or ethnicity "flexibility as a plus factor in the context of individualized consideration of each and every applicant" can survive strict scrutiny. Grutter v. Bollinger (2003).

Laws that discriminate on the basis of one's parents' marital status are

subject to intermediate scrutiny. Clark v. Jeter (1988). Laws may classify on the basis of matters related to the establishment of paternity, but to survive intermediate scrutiny they must be substantially related to that end.

Governmental decisions that classify on the basis of gender are

subject to intermediate scrutiny. This level of scrutiny requires a justification that is "exceedingly persuasive" and will be upheld only if the government can demonstrate that "the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." United States v. Virginia (1996). This rule applies both to laws that burden women, United States v. Virginia (1996), and to laws that burden men, Craig v. Boren (1976).

Classifications on the basis of alienage are

subject to strict scrutiny. Graham v. Richardson (1971). However, policies excluding aliens from employment in "policy-making" positions are subject only to rational-basis review. Foley v. Connelie (1978). State laws affecting alienage receive some form of heightened scrutiny. Either strict or intermediate scrutiny. Unless the aliens are illegal. However, children of illegal aliens are protected. Federal law always receives rational-basis review. This is because the federal government has plenary powers to regulate immigration and naturalization.