1. Constitutional Law II Discrimination Against Other Classes

2. Fall 2006Con Law II2 Non-Marital Children Indicia of Suspectness Immutable Trait  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 way to enforce morality

3. Fall 2006Con 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. Fall 2006Con Law II4 Non-Marital Exclusion – Const’l Intermediate Scrutiny Mathews v. Lucas (1976)  Survivors’ benefits to non-marital children only where paternity/dependency established (or by 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 Nguyen v. INS (2001)  Citizenship for legitimate, not ill. children born abroad

5. Fall 2006Con 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 Discrimin’n  Feeble minded  Mentally Ill Insane asylum lunatic

6. Fall 2006Con 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. Fall 2006Con 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. Fall 2006Con 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. Fall 2006Con Law II9 Romer v. Evans (1996) Facts: Colorado Amendment 2 repeals local anti-bias ordinances that protect GLBTs; and Prohibits their reenactment State antidiscrimination laws States have power & discretion to enact  A state’s failure to enact does not violate EP  Therefore, a state’s repeal of anti-bias laws (return to status quo ante) does not violate the EP clause Creation of differential access to political power  is discriminatory - nominally apply RB, but  if intentionally along suspect class lines, apply SS basis for Colo SCt decision

10. Fall 2006Con Law II10 Romer v. Evans (1996) Kennedy’s Equal Protection Approach Unnecessary to decide whether protected class Amendment 2 fails rational basis test State MEANS (classification): Gays must resort to higher level for protection  Compare, e.g., pet-protection ordinance State ENDS: Conserve state resources – legitimate Create legal protection for private biases  discrimination for discrimination’s sake is always an impermissible object under EP clause (Cleburne) perfect fit arbitrary fit

11. Fall 2006Con Law II11 Romer v. Evans (1996) Scalia (dissent) If state can criminalize homosexual conduct, in support or traditional values, can’t it impose a lesser burden?  Although he’s wrong that EP invalidation of 2-stage political access is unheard of, he’s right  that extending it to gays suggests special status Bottom line of Romer: Denying any group equal access to the law is per se a denial of equal protection of the laws  At least when based on hostility toward the group

12. Fall 2006Con Law II12 Romer v. Evans (1996) What Happened to Bowers? Severe scholarly criticism of interp. method  Including narrow & overstated historical analysis  Notion of distinct “homosexuals” not found in 18 th C J. Powell recanted European Court of Human Rights  Dudgeon v. United Kingdom (1983) Dudgeon v. United Kingdom  Case of X, Y & Z v. United Kingdom (1997) Case of X, Y & Z v. United Kingdom Powell v. State (GA S.Ct. 1998)  Statute violates state const’l right to privacy Lawrence v. Texas (2003)