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
