Equal Protection Clause

"No State shall make or enforce any law which shall abridge... nor deny to any person within its jurisdiction the equal protection of the laws "

Class Analysis Hybrid Fundamental Rights Analysis

When implicated? Level of Scrutiny
When implicated? Level of Scrutiny
-If gov't is infringing on a
By Right
- If gov't is drawing a distinction By Class fundamental right among certain
Fundamental Right -
between citizens based on Suspect Class - Strict Scrutiny people. (Ie, EPC can be used as a
Strict Scrutiny
specific characteristics Quasi-Suspect Class - Intermediate backup and substitute for
Scrutiny substantive due process)
Liberty Interest -
Level of Scrutiny Varies by Class Others - Rational Basis
Rational Basis
Level of Scrutiny Strict if Right
Fundamental

Class-Based Discrimination

1) Identify Target Class 4) Apply Multiple Possible Standards.

2a) Is the class facially 3) What level of scrutiny
-Get creative with many types. YES Identify numerous interests, then apply
discriminated in the legislation? does class get?
(ie men, transgendered people, across the standards.
NO
normally gendered people, etc)
2b) Can discriminatory purpose
be shown? Villiage of Arlington Recognized Classes Below Rational Basis Rat. Basis w/ BITE
Recognized Classes Heights Step 1. -Legitimate purpose -Legitimate purpose
-Race (strict scrutiny) a) Clearly discriminatory; no other -Rationally related (Fit) -Rationally related (Fit)
-Nonmarital children (quasi-suspect; alternative reason. New class factors Arlington -Role of deference -Role of deference
intermediate scrutiny) b) History of invidious actions by Heights: -Burden on P -Burden on P
-Alienage (generally Strict Scrutiny; government. (1) Immutability of trait;
exception for democratic process) c) Legislative or administrative (2) Ability to protect via
-Gender (intermediate scrutiny) history of law. political process; Intermediate w/ BITE
---------------------------- (3) History of discrimination; Intermediate Scrutiny
- New Classes (immutability, lack of -"Exceedingly
Argue no discrimination Gedulig. AND -Important purpose
representation, history of oppression, persuasive" purpose
------------------------------ (4) Concern that -"Substantially related"
-------------------------- -"Substantially related"
McKlesky Dissent Brennan - classification reflects (Fit)
Argue no discrimination. Gedulig (Fit)
Where there is massive evidence, prejudice -Role of deference
-Role of deference
and history, no purpose need be -Burden on Gov
But see -Burden on Gov
shown. US v. Carolene Products
Footnote 4: "Discrete and
Kinds of Classification by Race & Law insular minorities" Strict Scrutiny Strict Scrutiny
-Compelling gov't LIGHT
Facially Laws Intended to interest Highly deferential;
Facially
Discriminates, but Benefit Minorities -Necessary for purpose sometimes court says
Negatively
Discriminates Treats Blacks & (Affirmative -Narrowly tailored strict scrutiny but allows
Whites Equally Action) -No least restrictive less. Korematsu v.
Gender Scrutiny Levels means United States
Strict Scrutiny
Initially Rat Basis (Reed v. Reed) DIs?
Old Rule: Bakke Plurality - Intermediate Scrutiny for Sliding Scale (Thurgood Marshall)
Strict Scrutiny Suggested (Frontiero v.
things benefitting minorities Mass. Bd. Ret. v. Murgia - Dissent
Richardson Dissent)
Modern Rule: Grutter v. Bollinger; Gratz v. Bollinger; (1) Basis or character of the classification vs.
Intermediate _____
Fisher v. University of Texas - (2) the importance of the interest adversely
Intermediate with BITE
ALL current cases have adopted STRICT SCRUTINY as impacted.
the test.

Gender Classifications (Quasi-Suspect Class) - But what about transgendered people?

Remember: Pregnant
women are considered
Rational Basis (If can argue that it is not a male v. female gender issue)
distinct from women in
general - not all women will
Intermediate Scrutiny (if can argue that it IS a male v. female issue)
be pregnant at some point in
life.
Strict Scrutiny (possibly available through analogy to race-based programs designed to aid)

What is the class of

transgendered people?

Rational Basis Strict Scrutiny Arguments

Intermediate Scrutiny Arguments
-Trans man v. man is not discriminatory, because trans -B/c "discrete & insular" plus the physical
- Gender = biological sex, therefore trans man v
man is now a man (intra class distinction) capabilities of trans people no longer carries same
regular man is a regular gender inequality
-Trans man (frm female) v. woman is not discriminatory distinction as born gender, this deserves STRICT
- Transgenders are their own biological sex, and
by class because trans man is still a woman scrutiny
therefore qualify for same quasi-suspect
-Hesitancy to recognize a "class" based on an idea and -Affirmative action program benefitting trans people
treatment as women
immutable characteristic should also get strict scrutiny ala affrimative action
Brennan in Frontiero v. Richardson -> "romantic
paternalism" means strict scrutiny appropriate