1. Equal Protection of the Law: Basic Principles & Analytical Model LEARNING THE LAW © 2015 Brendan Beery & Daniel Ray. All rights reserved.

2. KEY POINTS Main concept: A fundamental premise of the law is that similarly situated persons should be treated the same by the law –14 th Amendment Equal Protection Clause prohibits states from unlawfully discriminating against those who are similarly situated –Equal protection has been “reverse incorporated” against the federal government via the 5 th Amendment Due Process Clause © 2015 Brendan Beery & Daniel Ray. All rights reserved.

3. KEY POINTS Three tiers of equal protection scrutiny –Strict scrutiny is applied to laws that discriminate based on race, national origin, alien status, and to any classification that substantially impairs exercise of a fundamental right –Intermediate scrutiny is applied to a law that discriminates based on gender or illegitimacy –Rational basis scrutiny is applied to a law that classifies on any other basis © 2015 Brendan Beery & Daniel Ray. All rights reserved.

4. KEY POINTS Equal protection analysis is essentially grafted over due process analysis –Always start analysis by asking whether law classifies persons, explicitly or implicitly If answer is yes, then do equal protection analysis If answer is no, then go to due process analysis –Equal protection analysis will send you to due process analysis if classification is not suspect but infringes the exercise of a fundamental right © 2015 Brendan Beery & Daniel Ray. All rights reserved.

5. BASIC ANALYTICAL MODEL Five questions, with subparts –Question 1: Does the law classify persons? If yes, go to Question 2 If no, go to due process analysis –Question 2: Is the purpose of the law to discriminate based upon the class and does it have a discriminatory impact upon the class? If yes to both, go to Question 3 If no to one or both, go to due process model © 2015 Brendan Beery & Daniel Ray. All rights reserved.

6. BASIC ANALYTICAL MODEL Question 3: Is the classification based on race, national origin, or (state) alien status? –If yes, then: 3a: Does the government have a compelling interest to justify the classification? –If no, then classification violates equal protection –If yes, then go to Question 3b 3b: Is the classification necessary or narrowly tailored to meet the government’s compelling interest? –If no, then classification violates equal protection –If yes, then no equal protection violation –If no, then go to Question 4 © 2015 Brendan Beery & Daniel Ray. All rights reserved.

7. BASIC ANALYTICAL MODEL Question 4: Is the classification based on gender or illegitimacy? –If yes, then: 4a: Does the government have an important interest to justify the classification? –If no, then classification violates equal protection –If yes, then go to Question 4b 4b: Is the classification substantially related to the government’s important interest? –If no, then classification violates equal protection –If yes, then no equal protection violation –If no, then go to Question 5 © 2015 Brendan Beery & Daniel Ray. All rights reserved.

8. BASIC ANALYTICAL MODEL Question 5: Does a non-suspect classification impair the exercise of a fundamental right? –Use modified due process model to answer 5a: Is it a fundamental right? –If no, classification is judged using rational basis test –If yes, go to Question 5b 5b: Does the classification substantially impair the exercise of the right? –If no, classification is judged using rational basis test –If yes, go to Question 5c © 2015 Brendan Beery & Daniel Ray. All rights reserved.

9. BASIC ANALYTICAL MODEL Modified due process model, cont’d –Question 5, cont’d 5c: Does the government have a compelling interest to justify the classification? –If no, then equal protection violation –If yes, then go to Question 5d 5d: Is the classification necessary or narrowly tailored to meet that compelling interest? –If no, then equal protection violation –If yes, then no equal protection violation © 2015 Brendan Beery & Daniel Ray. All rights reserved.

10. HOW LAWS DISCRIMINATE Facial discrimination Facially neutral but discriminatory impact –“No person who is less than 5’2” and 120 lbs shall be a police officer” Facially neutral but discriminatory application –“No person may vote who cannot pass a literacy test” –Yick Wo v. Hopkins (1886) © 2015 Brendan Beery & Daniel Ray. All rights reserved.

11. RATIONAL BASIS REVIEW FCC v. Beach Communications (1993) –Statutes going to matters of social and economic policy entitled to a “strong presumption of validity” –Party attacking such a statute must negate “every conceivable basis” supporting it Are there any impermissible purposes? –Not many © 2015 Brendan Beery & Daniel Ray. All rights reserved.

12. RATIONAL BASIS REVIEW Impermissible purposes, cont’d –“[A] bare…desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Moreno –See also Cleburne v. Cleburne Living Center (1985) (“irrational prejudice against the mentally retarded”); Romer v. Evans (1996) (quoting Moreno and finding classification “born of animosity” towards class) © 2015 Brendan Beery & Daniel Ray. All rights reserved.