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EQUAL PROTECTION (LOOK FOR CLASSIFICATIONS) EP: 14th No state shall make or enforce any law which shall

deny to any person within its jursid. the equal protection of the laws Boiling v. Sharpe: 5th amd for federal actions 1. What is the classification? -facially discriminatory? - discriminatory effect + purpose? 2. Is there a fundamental right, suspect, or quasi suspect class? - Immutable characteristics - history of discrimination- badge of inferiority - protection through political process- discrete and insular minority 3. Level of scrutiny? -Suspect class/ Fundamental right: S.S. - Quasi Suspect: I.S. - Not suspect: RB 4. What is the states interest? 5. Is it rational, substantially, or necessary related? Over/ Under inclusive: Not ok in SS, ok in IS, RB * pg. 427- Quote about Questions to ask in an EPC case STRICT SCRUTINY: necessary to achieve a compelling state interest 1. Necessary? 2. Closely tailored? 3. Least restrictive alternative? 4. Over/ Under inclusive? *Prejudice against discrete pg.35 Caroline FN4 Origin EP-Race, alienage, ethnicity, language, national origin, all nonmartial v. marital children, Fundamental Rights, Freedom of Association, Content restrictions on speech WATERED DOWN STRICT SCRUTINY: strict in theory but fatal in fact Differential treatment within a suspect class Affirmative Action, Cases helping minority INTERMEDIATE SCRUTINY: substantially related to an important state interest EP- Sex/ Gender, illegitimacy RATIONAL BASIS W/ BITE: Rational Basis but struck down 1. Indicia of suspectness- characteristics of suspect class/history of being discriminated against. Political powerlessness/unpopular 2. Animus/ prejudice- motivate the passing of the law 3. Importance of Right Being Limited (House/$, Food, Rights) Ex. Disability (Cleburne), sexual orientation Romer, Morenohippie colony *The disadvantage imposed is born of animosity toward the class of persons affected Romer * The desire to harm a politically unpopular group cannot constitute a legitimate governmental interest Moreno RATIONAL BASIS: rationally related to a legitimate state interest Economic class, age, wealth, race (with no discrim. purpose) Fritz, Railway Express- NY Truck Ads. Beach- Any concevieable state of facts. May be based on rational speculation

Alienage- class relates to democracy or self govt; Congress or President passes State interest: police powers, administrative convenience, public sentiment, deference to law maker, ct. supplies its own reason RACE 1. Is the class drawn according to race? Use SS 2. Does it create a badge of inferiority or caste system? Use SS 3. Facially neutral? If Yes Then does it have an actual discriminatory purpose AND effect? To determine purpose: pg. 218-219 a. Impact bears heavy on one race? Davis b. Totality of the circumstances Davis c. Clear pattern, unexplainable on any other grounds Yick Wo d. History background of the decision Arl.Heights. e. Depart from procedural sequence AH f. Depart from substantive AH g. Legislative History AH h. because of not inspite of Can be aware of discrim. effects but only some evidence. AH. Feeney-219 Says must be created with the intent to cause discriminatory goal. Must have an effect- Palmer 209. If petitioner shows one of the reasons the law was passed was discrimination, respondent must then show it would have passed regardless of this purpose. If no purp&effect then RB * discriminatory purpose may inferred the relevant facts . . . but it is not the sole touchstone of racial discrim. forbidden 214 Davis -Loving v. VA: drawn according to race, burdens fundamental right, Marriage. Court says not legitimate purpose STATE ACTION? Look for: 1) private actors 2) interwined with government 3)to the extent that deemed important to impose limitation -Look for: Practical Politics, entanglement, private actors performing public functions, the inherent publicness of the concern; reasonable expectation that the state leg. will remedy the issue; State has to enforce discrimination. Moose lodge- state action is too attenuated. Not enforcing discrim Marsh (private town)- Public function/inherent pub Shelly v. Kraemer- covenants public funct/ state enforce AFFIRMATIVE ACTION/ BENIGN Watered Down Strict Scrutiny Recognized State Interest: 1. Diversity of student body (only in high ed.) Grutter 2. Remedy past specific discrimination NOT Social NOT: racial balancing Parents Involved- no deference but doesnt show any evidence of the benefits of their policy. Also says no judicial finding of past discrim so that cannot be a compelling interest here. System creates quota in effect. Uses SS. Quota System- uncons. Bakke Plus factor- cons. Use an individual analysis of each student in order to be narrowly tailored. Race cannot be the deciding factor. - Croson- Need specific evidence to support/ need narrow tailor - Adarand Construction: contracts to minorities; We dispel the notion that strict scrutiny is strict in theory but fatal in fact. 280 Creates WDSS- Different than SS in it only need good faith

consideration of race neutral alternatives, deference to university in finding a compelling interest and level of diversity is required. Doesnt scrutinize implementation GENDER 1. Is the class drawn according to sex? 2. Quasi Suspect class- Intermediate Scrutiny 3. Is the purpose inconsistent in application? Actual/Original purpose (VMI), current purpose 4. Is it the least discrim. alternative? 5. Based on Immutable differences? Archaic stereotypes- unconst. Remedial benefiting women- const. Deference to law maker. Facially neutral- Feeney Cannot use sex as a proxy for interest unless there is strong link ** Quote about acceptable sex classifications US v. VA 376 Originally used SS then Craig moved to intermediate because of inherent difference. Craig v. Boren- beer no statisitics to show relation must be substantial. No linkage between gender; Hogan- male nurse no substantial relation to past discrim. Looks for actual purpose not just a recognized one; US VA-VMI Ct uses IS+ govt demonstrate a exceedingly persuasive justification. Court doesnt look at current justification of preserving adversative method but looks at original purpose for discrimination and finds this to be outdated. Looks at evolution of purpose. Effect is clear here but not intent but court says there is intent. Uses stereotype Parham- wrongful death only affects illegitimate fathers not all fathers so RB. Rostker-draft cards RB Michael M. v. Sonoma talks about natural difference acting as a deterrent Nguyen- Mom stuck with kid 9 months while dad might leave. Want to have a cultural connection to US. Tracks stereotypes and defers to congress. Different than Craig. FUNDAMENTAL RIGHTS 1. Is there a fundamental right involved? (narrow v. broad definition) a. History and Tradition b. Personalness and importance Lawrence/Casey/Roe/Eisenstad c. Emerging or Collective Conscious d. Penumbras- shadow of other rights 2. If no, then RB 3. If yes, what type of fundamental right? Right to Privacy: heighten scrut./ intermediate Others: S.S. 4. Is there a significant interference with that right? Abortion: Undue Burden 5. Is there a compelling interest that is closely tailored? Griswold- right to use birth control (married) penumbra theoryright to privacy from enumerated rights 1, 3, 4, 5. 556 Skinner- right to procreate Marriage and procreation are fundamental existence and survival of the race. 482 Eisenstadt- Right to b. control to individual women, personalness & importance. Fundamental right of individual. 563 Roe, Casey- Abortion cases use SS Waiting period & parent consent + jud. bypass & health & safety reg. = ok. BUT, parent consent w/o judicial bypass & spousal consent/notification= UC. Legitimate interests entire life of

fetus/mom after viability then becomes compelling. Cannot put Undue burden on abortion 589. Mother exception after viability on any prohibitions to abortion. Lawrence- right to sexual privacy. liberty interests not fund. Broadly Framed. Looks at last 50 yrs not 14th time (emerging consensus) Not giving class recognition. Cruzan-fund. right refuse med treatment. State comp int. in protect and preserving human life Glucksberg-strong counter tradition. Narrow framing issue. Interest is preserving life. May be as applied challenge if not relief to suffering. 1ST AMENDMENT- SPEECH 1. Is the restriction content based? Subject matter, view point 2. Is the restriction content based as applied (OBrien) 3. Where is the speech? Public Forum Analysis *If within Limited public forum- can regulate subject matter but not viewpoint If Yes content based- S.S. If no, content based- I.S. Non- protected speech: a. Fighting words b. Incitement of illegal activity c. Obscenity d. Defamation e. True threats f. Indecent speech- less protected Fighting Words- Cohen those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction Inditement Speech- Brandenberg Test *Advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action 673 1. Speech is directed to inciting or producing and 2. illegal action 3. It is likely to incite or produce such action Must be an action, unlawful, imminent Abrams- leaflets, Schenck- leaflets, Bran- KKK Obscenity- Miller Test- Need a Jury Verdict 1. the average person, applying contemporary community standards would find that the work, taken as a whole appeals to the prurient interest 2. work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the state law 3. Work lacks serious literary, artistic, political, or scientific value PUBLIC FORUM DOCTRINE Traditional public forum- must be content neutral 1. Time, place, manner- I.S. Are there alternative avenues of communication? Licensing/ Permit: Ok if important state interest for requiring one, clear criteria leaving no discretion to the licensing authority, and procedures for prompt review of negative decisions Sidewalks- Grace Scotus case, Hill, Madsen- buffer zone Limited public forum- can regulate content not viewpoint

State property traditionally open for expressive purposes may not be closed off or abridged for reasons relating to the content of the proposed expression, but the state may impose reasonable time, place, and manner restrictions on the use of the public property Hague 719 VAGUENESS/ OVERBREADTH Vague: cannot tell what speech is prohibited and what is permitted Overbreath: regulates more speech than necessary Board of Airport Commissioner- LAX 1ST AMD- ASSOCIATION Strict Scrutiny + exceptions 1. Is there a fund. right? yes, association 2. Type of expression? Intimate, expressive 3. Is the state placing a burden on the expression? 4. Compelling interest in placing the burden? *[t]he First Amendment implies a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. Rotary Club of Duarte citing Roberts 1. Intimate Association: In determining whether a particular association is sufficiently personal or private to warrant constitutional protection, we consider factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship. Rotary Club of Durante 745 2. Expressive Association: are you sending a message If yes, would allowing the state action, the excluded individual place a burden on the purpose of the message? 1ST AMD- FREE EXERCISE RELIGION 1. Is the law neutral? 2. Does it have general applicability? 3. If yes- RB, if no, SS Sherbert- denied unemployment; Yoder- Amish kids; Oregon v. Smith- peyote 1ST AMD- EST. CLAUSE- S.S. 1. Separationist: Ginsberg [Soto, Kagan?] Lemon Test a. Does the statute have a secular purpose? b. Is the primary effect of the statute one that neither advances nor inhibits religion? c. Foster excessive entanglement? 2. Accommodationist: Scalia, Thomas, Kennedy [Alito, Roberts?] Limitation: Govt may not coerce religious participation; Govt cannot establish a religion Kennedy- coerce with school prayer 3. Neutralist: Breyer Cannot favor religion v. secularism v. other religions Symbolic endorsement test: violation if govt symbolically endorses a particular religion or religion over secularism Reasonable observer- has a reasonable memory *The eyes that look to purpose belong to an objective observer, one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act . . . reasonable observers have reasonable memories. MC

* Neutralist the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals. . . McCreary *When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individuals decision about whether and how to worship. MC OConnor Breyer: Concerned with deviciness RELIGIOUS DISPLAYS- McCreary, Van Orden Allegheny- crche UC Menorah: religion freedom and pluralism = ok McCreary- UC, reasonable observer has reasonable memory and remembers the purpose of the 10 commadment Van Orden= ok, State Capitol grounds Breyer: deciviness if you take it down OConnor: total grounds is not one canvas SCHOOL PRAYER- Lee v. Weisman 1. Schools involvement with the prayer? 2. Coercion Coercion in attendance, coercion in part. once you are there *Prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. *Lack of Alternatives For absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. FREE SPEECH & EST. CLAUSE Rosenberger: UVA: viewpoint discrim. S.S. Goodnews club: limited public forum in schools, Thomas, J. extends this to viewpoint to strike down & let them meet there