1. Constitutional Law II Spring 2005Con Law II1 Discrimination Against Other Classes

2. Spring 2005Con Law II2 Non-Marital Children Indicia of Suspectness Immutable Trait  Characteristic of Birth  Discrete & Insular ? Does not carry an obvious badge History of Discrimination  Bastard  Not as bad as race/sex bias Impediments to political process? Gross unfairness  penalizing child is ineffectual and unjust

3. Spring 2005Con Law II3 Non-Marital Exclusion – Unconst’l Intermediate Scrutiny Levy v. LA (1968); Glona v. Am. Guar. (1968)  statutes denying wrongful death cases. NJWRO v. Cahill (1973)  denial of welfare Gomez v. Perry (1973)  Exemption from parental support Trimble v. Gordon (1977)  denial of intestate inheritance Jiminez v. Weinberger (1974)  Disability benefits denied unless dependency (at time of disability) could be established

4. Spring 2005Con Law II4 Non-Marital Exclusion – Const’l Intermediate Scrutiny Mathews v. Lucas (1976)  Survivors’ benefits payable to non-marital children only where paternity and dependency established (unless could inherit under state law) Labine v. Vincent (1971); Lalli v. Lalli (1978)  (Important) ENDS: Avoidance of Fraud  (Subst. Related) MEANS: Paternal inheritance limited to children legimated during father’s lifetime  CLOSENESS of FIT: Harder to detect fraud if child wasn’t legitimated

5. Spring 2005Con Law II5 Developmentally Disabled City of Cleburne v. Cleburne Living Ctr (1985) Group home for “mentally retarded” must obtain special use permit; not req’d for others Indicia of Suspectness Immutable Trait? History of Discrimination  Feeble minded  Mentally Ill Insane asylum lunatic

6. Spring 2005Con Law II6 City of Cleburne v. CLC (1985) Indicia of Suspectness Gross unfairness  Real differences between this group and others  Some unique restrictions are appropriate Access to Political Process  Beneficial legislation “belies a continuing antipathy or prejudice” against the group  At what level of gov’t should this inquiry be undertaken? State/Federal: anti-bias laws Local: Cleburne’s hostility to devel. disabled Disinclination to create new suspect classes

7. Spring 2005Con Law II7 City of Cleburne v. CLC (1985) Rational Basis Test (Legitimate) ENDS:  Opposition by neighbors & elderly  Harassment by neighboring school  Public Safety (500 yr flood plain)  City liability for residents’ actions  Density (Rational) MEANS (classification):  Developmentally disabled no less able to cope with flood than residents of nursing homes, hospitals, etc  DD no more likely to create municipal liability than frat brothers  Not a concern for other multi-person living Enforcing bias is never a legitimate state interest

8. Spring 2005Con Law II8 City of Cleburne v. CLC (1985) Standard of Review Rational Basis ? Almost suspect class Meet many, but not all, indicia of suspectness Almost fundamental right Housing is not fundamental under DP or EP, but still a “necessity of life” Degree of Interference Total denial, not simply unequal allocation Taken together, these factors may lead to Rational Basis with Bite

9. Spring 2005Con Law II9