Equal Protection

Front 1

When is Strict Scrutiny applied?

When is a law upheld under strict scrutiny?

What must the burdened party show?

Back 1

Applied when the law is based on discrimination on the account of race, national origin, aliens.

Upheld if proven necessary to achieve a compelling government purpose.

Government must have a truly significant reason for discriminating and must show it cannot achieve its objectives through any less discriminatory alternative.

Front 2

When is intermediate scrutiny used?

When is a law upheld under I/S?

Back 2

When discrimination is based on gender or against non-marital children.

Upheld if substantially related to an important government purpose.

Front 3

What reasoning and considerations are behind applying heightened scrutiny to laws that discriminate against particular groups?

Back 3

Unfair to penalize a person for characteristics they did not choose and can't change.

(Race, national origin, gender, parents' marriage)

Courts consider (the):

1. group's ability to protect themselves through the political process,
2. history of discrimination,
3. likelihood the classification reflects prejudice as opposed to permissible government purpose.
   

Front 4

When is rational basis review used?

When is a law upheld under rational basis review?

What is a (--) purpose?

Back 4

When government matters regarding economic & social regulations, unless they infringe on fundamental rights or discriminate against a group that warrants special judicial protection.

Upheld if it is rationally related to a legitimate government purpose , and if its possible to conceive any such purpose even if it wasn't the government's actual purpose.

Laws cannot be arbitrary.

Legitimate purpose advances traditional police purposes--protecting safety, public health, public morals (not limited to these).

Front 5

Rational Basis Review with Bite

Front 6

Two ways a classification could be deemed to be a (discriminatory classification).

Back 6

1. Facially discriminatory.
   
2. Purpose and impact is discriminatory.

Front 7

Four requirements to qualify as a suspect classification.

(+ 1 Cleburne factor)

Back 7

1. Be politically powerless.
2. Have suffered a history of discrimination.
3. Be defined by an immutable trait.
4. Be a discrete and insular minority.

1. Extent to which the that relates to one's ability to participate in society.

Front 8

Process to determine if law relies on suspect or quasi-suspect classifications. (5)

Back 8

1. What's the classification?
   
2. What LoS applies to the classification?
3. What is the state interest?
   
4. What's the fit between the interest the state is advancing and the ends (sic: means?)?
5. Does the state interest and fit satisfy the LoS?

Front 9

Over/Underinclusive Analysis

Back 9

1. Look at the type of harm the law seeks to protect.
2. Determine the people/conduct that caused the harm.
3. Then at the group targeted by the harm.
   
4. Then determine how they overlap.

Front 10

When is a law underinclusive?

When does it apply in a harmful context?

Why is it allowed?

Back 10

When it doesn't reach all of the agents that cause the harm/does not apply to individuals who are similar to those to whom the law applies.

When law targets a particularly politically powerless group or exempts those that are favored.

Rational basis review-government is allowed to take incremental steps to solve problems.

No law is perfectly tailored, always under/over. Survives rational basis review, but not heightened scrutiny.

Front 11

Where do fundamental rights regarding the Federal Government derive from?

Back 11

Bill of Rights through the 5th Amendment.

Front 12

Where do fundamental rights regarding State Government derive from?

Back 12

1st, 2nd, 4th, 6th Amendments through the 14th Amendment.

5th & 7th not incorporated.

3rd & 8th not ruled on.

Front 13

Two processes to determine if a right is fundamental.

Back 13

Michael H

Brennan Rule (Broad): Read past precedent broadly, look to general principles that go beyond facts of the case. Enough that society has deemed to be important. "Freedom not to conform."

Scalia Rule (Narrow): To prevent arbitrary decision making, "we refer to the most specific level at which a relevant tradition protecting or denying protection to the asserted right can be identified. History & Tradition, stresses factual details.

Front 14

In what context has the Supreme Court used Equal Protection?

Back 14

To protect voting, access to the judicial process, and interstate travel. (Strict Scrutiny)

"Moral disapproval of a group cannot be a legitimate governmental interest under the EPC because legal classifications must be drawn fro the purpose of disadvantaging the group burdened by the law."

Front 15

What LoS does gender discrimination receive?

Back 15

Intermediate scrutiny

(Any level of scrutiny more demanding than RBR but less demanding than SS.)

Front 16

Reed v. Reed (1971)

Back 16

Surrogate Proceedings

Favored males over females in intestate proceedings, completely arbitrary and therefore not valid under rational basis review.

Front 17

Frontier v. Richardson

Back 17

Female Military Claiming Dependents (Plur.)

Under any form of heightened scrutiny the purpose prong will not be satisfied by convenience, cost savings and efficiency.

Struck down on Strict Scrutiny.

Front 18

Craig v. Boren

Back 18

Non-alcoholic Beer (21 for girls/18 for guys)

Articulated intermediate scrutiny.

"Classifications by genre must serve important governmental objectives and must be substantially related to those objectives."

Front 19

United States v. Virginia

Back 19

Virginia Military Institute

"Sex Classification may be used to remedy past discrimination but they may not be used to create or perpetuate the legal, social and economic inferiority of women."

Front 20

Calfano v. Webster

Back 20

Social Security Income Payments to Women

Calculating benefits in a more advantageous way than was used for men was not based on stereotypes, but rather the permissible goal "of redressing our society's longstanding disparate treatment of women."

Constitutional if it "operated directly to compensate women for past economic discrimination."

Front 21

Nguyen v. Immigration and Naturalization Service

Back 21

Illegitimate Children not citizens for Dads

Allowing a gender classification benefitting women based on biological differences between men and women.

Used more deferential standard than I/S.

Dissent against over broad generalizations.

Front 22

Dredd Scott

Back 22

Couldn't sue in court because considered property, not a person--eventually overruled by Section 1 of the Fourteenth Amendment

Front 23

Korematsu

Back 23

Curfew & Internment Camps

All legal restrictions which curtail the civil rights of a single racial group are immediately suspect but not all restrictions are unconstitutional. Must use SS, but in times of war or national crisis SC will defer to other government officials.

Lip service to SS, actually rational basis review.

Front 24

Plessy v. Ferguson

Back 24

Separate but Equal Railroad Cars

14th Amendment deals with racial, but not social equality--this is social. Rejects idea that negative stigmatization results from separate facilities.

Front 25

Brown v. Board of Education

Back 25

Separate but Equal Impermissible in Pub. Ed.

Separate but equal inherently stamps black children as inferior and impair their educational opportunities. Subject to strict scrutiny, as it is discriminating on a class

Front 26

Washington v. Davis

Back 26

Discriminate Impact--DC Police Literacy Test

Must show discriminatory impact and purpose.

Front 27

Mclesky v. Kemp

Back 27

Death Penalty Discriminatory to AA

Raw abstract data is not dispositive of a lack of equal protection, specific evidence of discriminatory impact and purpose needed.

Front 28

Gratz v. Bollinger

Back 28

University of Michigan Undergraduate (U/C)

Apply strict scrutiny to racial classification.

Diversity is a compelling interest in education.

Universities may use race as a factor to ensure diversity, but not quotas & numerical quantification of benefits. More narrowly tailored.

Front 29

Grutter v. Bollinger

Back 29

University of Michigan Law School

Schools have a compelling interest in creating a diverse student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity.

Front 30

Fisher v. University of Texas, Austin

Back 30

Controversial Affirmative Action Case

Tensions between strict scrutiny and educational autonomy. Must show evidence that means are narrowly tailored to the ends.

Front 31

Regents of the University of California v. Bakke

Back 31

Started off that "the interest of diversity is complain in the context of a university's admissions and hiring policies."

Gave a lot of deference to educational institutions.

Front 32

Romer v. Evans

Back 32

Colorado Homophobic Discrimination Act

Struck down using rational basis review (w/ bite)

Front 33

United States v. Windsor

Back 33

Defense of Marriage Act

"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and in dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

Front 34

City of Cleburne, Texas v. Cleburne Living Center, Inc.

Back 34

Mentally Disabled Home Restrictions (U/C)

"[L]egislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose."

Arguments based on prejudices and biases are not legitimate government purposes.

Made underinclusiveness argument--RBR w/ bite

Front 35

New York City Transit Authority v. Baezer

Back 35

Methadone Addicted Conductors

Overinclusive ok, alternative rule likely less precise & more expensive--rational basis review

Front 36

Rea

Back 36

Advertising Signs

Under inclusive laws are ok, government can take baby-steps to get there.

Front 37

Federal Communications Commission v. Beach Communications, Inc.

Back 37

Those contesting rational basis review have the burden to negate every conceivable basis which might support it.

"A legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data."