Tests for cases involving Equal Protection and Due Process Clauses

Equal Protection:

Principle: State shall not deny to any person within its jurisdiction the equal protection of the laws.

Two Step Assessment:

Step One: Suspect Classification, quasi-suspect classification or others?

Suspect Classification:  Race, religion, nation of origin –> Strict scrutiny

– immutable characteristics

– a discrete and insular minority

– historic discrimination

Quasi-suspect classification: gender –> intermediate scrutiny

Others: rational basis

Step Two: Levels of Scrutiny. 

(a) Strict scrutiny: applied to “compelling state interest”

  • the law is necessary to achieve a compelling purpose; no alternative solution
  • the law must be narrowly tailored

(b) Intermediate scrutiny: applied to “important state interest”

  • the law “substantially related” to the state interest

(c) rational basis: applied to “legitimate state interest”

  • reasonably or rationally related to the state interest
  • reasonable means to achieve the puproses

Due Process Clause

1. Substantial due process: Whether the government has an adequate reason for taking away a person’s life, liberty, or property.

2. Procedural due process: how the government enforces law must be fair. When the state or federal government acts in such a way that denies a citizen of a “life, liberty, or property” interest, the person must first be given notice and the opportunity to be heard

3. Two Step Analysis

Step One: whether the affected is a fundamental right?

Step Two: If yes, strict scrutiny; if not, rational basis.

Finding fundamental rights: in the constitution, about the liberty, autonomy or in the zone of privacy.

Test for finding fundamental rights:

Conservative approach:

  • implicit in the concept of the ordered liberty
  • deeply rooted in this Nation’s history and tradition

List of the recognized fundamenal rights (in addition to those explicitly numerated in the Bill of Rights):

  • right to marry and procreatn (Loving v. Virginia)
  • purchase and use birth control (Grisworld v. Connecticut)
  • custody of one’s own children and raise it as one sees fit (Palmore v. Sidoti)

Liberal approach: right to privacy – things fall into it (zone of penumbra) :

(1) things that are truly private to individual to decide (“Decisional Privacy”); or
(2) things happened in the geographically private places.

4. Strict Scrutiny in the context of due process — same to those in the Equal Protection analysis

Author: Donnie (豆哥)

Former academic in Law & Sociology, currently a lawyer, 15+ years experiences in IP and IT laws. 前任法律学者、现任滤师,专业过滤假货崴货(不限商品、服务、鸡汤鸡血);业余仁波切,负责解答精神问题。微信公号fadoufadou

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