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Unformatted text preview: Con Law Outline Flynn / Spring 2006 E QUAL P ROTECTION A NALYSIS 1. Is there state action? ( Shelley v. Kraemer, Burton v. WPC, Moose Lodge ) 2. What classification is the law making? a. FACIAL Classifications i. Race : SS ( Korematsu, Adarand ) ii. Sex : IS/EPJ (IS: Craig , EPJ: Hogan, VMI ). Real differences: IS ( Michael M., Rostker ). Or redefine classification so not sex: RR ( Parham ) iii. Illegitimacy : IS iv. Poverty : RR ( San Antonio ) v. Disability : RR ( Cleburne ) vi. Sexual Orientation : RR ( Romer, Goodridge ) – still do HS analysis vii. New Classification? Argue for heightened scrutiny. Three step inquiry: 1. history of discrimination 2. political powerlessness 3. immutability/no relation to ability to perform 4. (if necessary, Carolene Products “discrete and insular minority”) b. NON-FACIAL Classifications i. Is there a discriminatory effect on a race or sex classification? ( Yick Wo, Gomillion ) 1. something in fact pattern will generally show disparate impact. ii. Is there discriminatory intent ? ( Palmer, Washington v. Davis ) 1. P needs to show that the law/policy implemented because of and not in spite of the discriminatory outcome ( Washington v. Davis, Feeney ) 2. Ways to prove intent : (laid out in Arlington Heights ) a. clear pattern unexplainable on other grounds ( Yick Wo, Gomillion ) b. historical background of decision (timing of decision, departures from normal procedure) c. legislative history ( Moreno ; but see Fletcher (leg. history irrelevant, could be passed again with “pure motives”; intrusion into other branches)) 3. Once intent proven, burden of proof shifts to gov’t to prove non-discriminatory reason for implementing statute. (apply appropriate standard) iii. If not race or sex, apply RR. Look at who created the policy, whether groups are affected, and if there is a relationship b/t the policy and the goal of the policy. Is there animus ( Romer – is the statute so broad that there’s no other explanation)? 3. Apply the standard of review: (analogize to cases, bring in facts) a. State Interests i. SS – is the interest compelling ? 1 Con Law Outline Flynn / Spring 2006 ii. IS – is the interest important ? iii. RR – is the interest legitimate ? b. Means-Ends Fit i. SS – is the statute narrowly tailored ? ii. IS – is the statute substantially related ? iii. RR – is the statute rationally related ?...
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