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Unformatted text preview: Con Law Reading Notes
1. Constitutional Provisions Concerning Equal Protection
- equal protection clause was not invoked often until the 1950s with Brown v. Board of Ed.
- brown v. board of ed concerned public schools while Bolling v. Sharpe concerned generally the
fed govt through due process clause of the 5th amendment
- the SC applied the equal protection clause to the states through the 14th amendment
2. Framework for Equal Protection Analysis
- Is the government’s classification justified by a sufficient purpose?
- very broad so susceptible to any discrimination. Thus, the real issue is whether the
government can identify a sufficiently important objective for its discrimination.
- race discrimination is subject to strict scrutiny (compelling govt purpose), whereas other
discriminations are subject to rational basis test (rationally related to a legitimate govt purpose)
1. What is the classification?
2. What level of scrutiny should be applied?
3. Does the particular government action meet the level of scrutiny?
What is the classification
- analysis always must begin by identifying how the government is distinguishing among people
- classification can be facially discriminatory (race, or age) or they can be facially neutral, where
it has a discriminatory impact (the police officers weight and height example)
What is the appropriate level of scrutiny?
- strict scrutiny: race, aliens (with some exceptions)
- intermediate scrutiny (it is substantially related to an important government purpose): gender,
- rational basis test: economic liberties
- Several criteria are applied in determining the level of scrutiny: an individual’s characteristics
(race, gender, national origin); ability to represent and protect one’s self (political offices);
history of discrimination against the group
- in the past justices have argued that these levels are rigid and would rather use a sliding scale
Does the govt action meet the level of scrutiny?
- In evaluating the constitutionality of a law, the Court evaluates both the law’s ends and its
means. In evaluating this, the SC looks to see if the law is underinclusive and/or overinclusive
- a law is underinclusive if it doesn’t apply to people who are similar to those the law applies
(READ OVER THIS)
Protection of Fundamental Rights Under Equal Protection - sometimes, equal protection is used if the government discriminates among people as to the
exercise of a fundamental right
- for example, surgical sterilization for convicted criminals involving moral turpitude; voting is
B. The Rational Basis Test
- minimal level of scrutiny
- the challenger has the burden of proof when rational basis review is applied. There is a strong
presumption in favor of laws that are challenged under the rational basis test.
- the SC will uphold the law if there is any legitimate purpose for the law, even if it was not the
government’s actual purpose
- one of the cons of the SC’s application of rational basis is that it is inconsistent
- the court says that rational basis test will be applied more rigorously if it has “bite”
1. Does the law have a legitimate purpose?
- what constitutes a legitimate purpose? Policing power such as protecting safety, public
health, or public morals. But anything not forbidden under the constitution can be seen as
2. Is the law rationally related to achieving that purpose?
C: Romer v. Evans F: In 1992, the Constitution of the State of Colorado (D) was amended by popular
referendum to provide that “Neither the State of Colorado (D), through any of its
branches or departments, nor any of its agencies, political subdivisions, municipalities or
school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy
whereby homosexual, lesbian or bisexual orientation, conduct practices or relationships
shall constitute or otherwise be the basis of or entitle any person or class of persons to
have or claim any minority status quota preferences, protected status or claim of
discrimination.” The history of the amendment suggested that it was ratified in an effort
to invalidate ordinances enacted in several municipalities that banned discrimination on
the basis of sexual orientation in such matters as housing, employment, education, public
accommodations and health services. I: May a state amend its constitution to provide that gays cannot be considered a group
entitled to legislation or other government action prohibiting discrimination on the basis
of sexual orientation? H&R: No. A law declaring that in general it shall be more difficult for one group of citizens than
for all others to seek aid from the government is, in the most literal sense, a denial of
equal protection of the laws. The State of Colorado (D) argues that its constitution does
nothing more than place gays in the position of all other persons, that it only denies gays
any special rights not afforded to others. We disagree. The amendment withdraws from
homosexuals, but no others, specific legal protection from the injuries caused by
discrimination, and it forbids government action banning such discrimination. While the protection from discrimination in areas of housing and employment, to name two for
example, are taken for granted by most citizens, the amendment in question attempts to
withhold such protection from gays.
Since gays are not a suspect class, nor are gays being denied any fundamental right, the
amendment need only bear a rational relation to some legitimate government purpose in
order to pass constitutional muster. Under this inquiry, the amendment fails for two
reasons: (1) It imposes a broad and undifferentiated disability on a single named group;
and (2) it is so broad as to call into doubt any of the justifications proffered in its defense.
In searching for a link between the ends sought and the legislation enacted, we find that
the classification of homosexuals is both too broad and too narrow. It identifies persons
by a single trait then denies them protection across the board, resulting in a denial of the
right to seek specific protection from the law. Furthermore, any law of this type raises
the inference that it was enacted out of mere animosity toward the class of persons
affected, a motivation which makes classification such as the one at issue here invalid
under the Fourteenth Amendment. We also believe that the amendment bears no
legitimate purpose. Colorado has classified gays and denied them protection for the mere
reason that they are gay. This a state may not do. For all of the foregoing reasons, the
amendment acts as an unconstitutional deprivation or Equal Protection. Affirmed.
D: The amendment to the Colorado Constitution is nothing more than an attempt to preserve
sexual mores, an objective which has been specifically approved by this Court. We have
previously held that a state may, consistent with the Constitution, make it a crime to
engage in homosexual activity. If criminalizing homosexuality is permissible, so too
should be legislation which disfavors homosexuals. The Court is also mistaken in its
attempt to frame the amendment at issue as a denial of equal treatment. Today the Court
holds that it is a denial of equal protection when a group is singled out and made to resort
to a more difficult level of political decision-making in order to garner legislation in its
favor than is required of the general population. Until today, this principle was unheard
of. Analysis: The gist of the Court’s opinion in Romer was that a state may not enact legislation that
classifies a particular group of citizens on the basis of one characteristic and imposes upon them
a political burden not applicable to the general citizenry. In other words, what made the
legislation at issue unconstitutional was not necessarily that it denied gays the right to protection
from discrimination on the basis of sexual orientation. Rather, the constitutional violation
stemmed from the fact that the law required gays to amend Colorado’s Constitution before they
could gain protection aimed at eradicating discrimination on the basis of sexual orientation.
Although the particular point at issue in this case was whether the Colorado Constitution violated
the Equal Protection Clause of the Fourteenth Amendment, this case serves the more broad
purpose of providing a rare example of the Court’s willingness to strike down legislation subject
to the lowest level of constitutional scrutiny—the rational basis test.
Must it be the actual purpose, or is a conceivable purpose enough?
- a law will be upheld as long as the government’s lawyer can identify some conceivable
legitimate purpose, regardless of whether that was the government’s actual motivation - this gives complete deference to the govt
3. The Requirement for a “Reasonable Relationship”
- “whether the classifications drawn in a statute are reasonable in light of its purpose.”
- laws will be upheld unless the government’s action is “clearly wrong, a display of
arbitrary power, not an exercise of judgment.”
Tolerance for Underinclusiveness Under Rational Basis Review
- Underinclusive laws are laws that does not apply to every person engaged in the activity sought
to be regulated
- Underinclusive laws raise the concern that the government has enacted a law that targets a
particular politically powerless group or that exempts those with more political clout.
- the SC has said that even substantial underinclusiveness is allowed
C: Railway Express Agency, Inc. v. New York F: Railway Express Agency, Inc. (Railway) (D) was convicted and fined for violating a New
York City (P) traffic regulation which prohibited vehicles containing advertisements.
Railway (D) challenged its conviction on the ground that the regulation violated equal
protection because it expressly did not apply to “business notices upon business delivery
vehicles, so long as such vehicles [were] engaged in the usual business or regular work of
the owner and not used merely…for advertising.” (delivery vehicles which advertised the
delivery service itself) I: Does government regulation violate equal protection merely because it does not apply to
every activity of the same type sought to be regulated? H&R: No. Where the government chooses to regulate a particular activity, the regulation will
not be held invalid simply because it is not applicable to every form of that activity.
Railway (D) argues that basing the regulation’s primary exclusion on the identity of the
owner of the vehicle is not justified by the aim of the regulation. In other words, the fact
that a particular sign is placed on a delivery truck not owned by the person choosing to
advertise does not create any more traffic problems than when a person chooses to
advertise on their own delivery truck. Assuming that this is the true aim of the statute, the
argument is untenable. The local authorities could have decided that the traffic problems
associated with those who advertised others’ businesses were different in kind or degree
from the traffic problems associated with persons choosing to advertise their own
business. It is no requirement of equal protection that all evils of the same genus be
eradicated or none at all. Affirmed.
C: This Court often invokes the Due Process Clause of the Fourteenth Amendment to strike
down regulations enacted by municipalities to deal with local activities. In contrast to the
Due Process Clause, which frequently disables government from dealing with the subject
at issue, the Equal Protection Clause prohibits government from making arbitrary and
unreasonable distinctions between its citizens. Because we are more likely to find
arbitrariness in the regulation of the few, I am more receptive to attacks on local ordinances grounded in equal protection than challenges based on due process. I do not
think that differences in treatment under law should be approved because of differences
unrelated to the legislative purpose. The Equal Protection Clause ceases to fulfill its
purpose if it can be avoided by any conceivable difference that can be pointed out
between those subject to regulation and those free from it.
Analysis: When strictly scrutinizing legislation challenged on equal protection grounds, courts
often strike down legislation that is underinclusive—legislation that does not apply to
every person engaged in the activity sought to be regulated. However, as the court makes
clear in Railway Express, underinclusiveness is not fatal under the rational basis test.
Thus, the fact that the state chose to reduce a perceived danger by regulating only a few
of those who were purportedly responsible for the danger—in this case, delivery trucks
advertising other businesses—did not alone make the regulation violative of equal
Tolerance for Overinclusiveness Under Rational Basis Review
- A law is overinclusive if it regulates individuals who are not similarly situated; that is, if it
covers more people than it needs to in order to accomplish its purpose
- even significant overinclusiveness is allowed under rational basis review
C: New York City Transit Authority v. Beazer F: The New York Transit Authority (Authority) (D) enacted a policy which prohibited the
hiring of narcotics users, which was read to include those undergoing methadone
treatment for heroin addiction. Two former employees of, and two applicants rejected by,
the Authority sought to challenge to rule on the ground that it violated the Equal
Protection Clause because it failed to distinguish between methadone users who
successfully refrained from using heroin and all other methadone users. I: May a city agency enact a blanket exclusion from employment against all persons
undertaking methadone treatment? H&R: Yes. An exclusionary scheme which is not directed against any individual or category of
person, but rather represents a policy choice made by government, is not unconstitutional
so long as it does not circumscribe a class of persons characterized by some unpopular
trait or affiliation. Beazer (P) challenges the rule on the ground that successful methadone
users—usually those who have completed one-year of treatment—should not be included
in the class of narcotic users because they do not pose the same threat to safety as the
latter. However, the District Court found that as many as 30% of “successful” methadone
users regressed to using heroin again. Thus, the Authority (D) merely chose to distinguish
between users and non-users, rather than drawing its distinction at the one-year line. Any
other rule would have been less precise and more costly. Accordingly, the policy that
postponed employment eligibility until completion of the methadone program was
rational. We must also keep in mind that we cannot fault the Authority for not proving the
unemployability of “successful” methadone users. Under rational basis review, it is those
who challenge the exclusion who bear the burden of proving that drawing the distinction elsewhere would be as effective and efficient. The Authority did not violate equal
protection by enacting a blanket exclusion from employment against persons undertaking
methadone treatment, without any regard to the ability of particular methadone users to
do their job safely. Reversed.
D: The Court ignores the fact that the District Court found that “successful” methadone
users can be easily identified through normal procedures and, for many jobs, are as
employable as nonusers. Thus the blanket exclusion too broadly furthers the rule’s stated
objective—the efficient screening of unemployable persons. For that reason the rule
violates the Equal Protection Clause. Analysis: Whereas Railway Express stands for the broad proposition that regulation will not fail
equal protection scrutiny merely because it is underinclusive, the decision here makes it clear
that overinclusiveness is also not dispositive under rational basis review. Accordingly, the fact
that the reach of the rule at issue included persons who did not exhibit the trait the Authority was
seeking to exclude—i.e., unemployability due to narcotic use—did not make the regulation
unconstitutional. The Court reasoned that drawing the bright-line at use/no use was at least as
efficient, and no more imprecise, than basing the distinction on whether the employee had
completed some level of methadone treatment.
Cases in Which Laws are Deemed Arbitrary and Unreasonable
- consider whether the issues in the following cases have more “bite”
C: U.S Department of Agriculture v. Moreno F: In 1971, Congress amended § 3(e) of the Food Stamp Act to provide that eligible
households did not include groups of unrelated persons. The Department of Agriculture
accordingly amended its regulations to provide that a household would be ineligible if it
included at least one person unrelated to the other members. Since eligibility for the
program was based on households rather than individuals, a number of people became
ineligible for the program because they happened to live with unrelated persons. For
example, Jacinta Moreno (P), a 56-year old diabetic, became ineligible because she lived
with an unrelated person who helped care for her and with whom Moreno (P) shared
living expenses. I: May a statute be invalidated pursuant to a rational basis review if it classifies persons in a
manner which is irrelevant to the stated purpose of the act? H&R: Yes. Even under rational basis scrutiny, a challenged classification must rationally further
some legitimate governmental purpose. The stated policy of the Food Stamp Act is to
provide for the nutritional requirement of needier segments of society. The fact that
unrelated persons live as one economic unit is in no way related to this purpose. Thus, for
the classification to withstand scrutiny it must be related to some other purpose of the
statute. The scant legislative history which exits suggest that the classification was created
to prohibit hippies and their communes from participating in the program. However, this
is not a legitimate government interest. The Government (D) argues that the amendment should be upheld as rationally related to the legitimate interest in minimizing fraud in the
administration of the program. It argues that Congress may have believed that unrelated
households either were more likely than related ones to fail to report other sources of
income or were relatively unstable, making it difficult to detect such abuses. Even if we
accepted the prevention of fraud as the purpose behind the law, it is clear that the
classification is not rationally related to that concern. The fact that the statute contains
other provisions, including criminal penalties, aimed at preventing fraud casts doubt that §
3(e) was rationally aimed at preventing the same abuses. Furthermore, the classification
does not rationally further even this tenuous purpose. Affirmed.
D: Today the Court oversteps it bounds. Our role is merely to determine whether there is any
rational basis which would support Congress’ decision to withhold food stamps from
unrelated persons living together. Surely, the statute passes this minimal inquiry. It is not
unreasonable to assume that Congress could deny food stamps to households formed for
the very purpose of taking advantage of the program. The fact that Congress may have
chosen a method which sweeps too many people under the purview of the regulation bears
no weight under rational basis review. Analysis: This case serves as a good illustration of the notion that rational basis scrutiny is a
malleable standard, often deferential, sometimes critical. If, as many cases suggest, rational basis
scrutiny involves an inquiry that merely asks whether Congress could have had some reasonable
basis for the classification, then one must agree with the dissent. However, other cases have
suggested that such a deferential sta...
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