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EQUAL PROTECTION FLOWCHARTS RACE

Is the regulation about race / facially discriminatory?

Affirmative action?

Is policy method flexible enough to appropriately promote diversity? Are the means necessary to achieve a compelling state interest?

YES

VALID

YES

YES NO

VALID INVALID

NO

Is there a disproportionate impact?

Y Is there enough evidence to suggest a discriminatory purpose?

Shift burden to government to prove the absence of disc purpose

If govt cant prove absence, the regulation is invalid and NO compelling interest may override its invalidity

GENDER

Is the regulation about gender / facially discriminatory?

Affirmative action?

Is policy method flexible enough to appropriately promote diversity?

YES

VALID

YES

Are the means substantially related to the achievement of an important state interest?

YES NO

VALID INVALID If govt cant prove absence, the regulation is invalid and NO compelling interest may override its invalidity

NO

Is there a disproportionate impact?

Is there enough evidence to suggest a discriminatory purpose?

Shift burden to government to prove the absence of disc purpose

DISABILITY, AGE, POVERTY, SEXUAL ORIENTATION

Are the means rationally related to the achievement of the states legitimate interest?

YES NO

VALID INVALID

SUBSTANTIVE DUE PROCESS FLOWCHART

Does the state action prohibit/interfere with an individual "Liberty" interest?

Enumerated Bill of Rights Historically protected by law


YES Is there a fundamental rights deprivation?

NO

NO

Unenumerated "Implicit in the concept of ordered liberty" US-centered Civil Society generally

YES

NO SDP claim.

-Economic Rights - Die -Assisted suicide -sexuality

Rational Basis legitimate state interest reasonably related

Strict Scrutiny -Narrowly tailored means -Compelling state interest -Undue burden test? (Carey) Privacy Intimate relations Incorp. BoR Raise children Procreate Contraceptives Ext. family living