SCRUTINY TESTS AND CATEGORIZATIONS

(FOR EQUAL PROTECTION & SUBSTANTIVE DUE PROCESS)

1. WHAT IS THE CLASSIFICATION?
a) The classification is on the face of the law or
b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact

2. WHAT IS THE LEVEL OF SCRUTINY?

Strict Scrutiny
Burden on State

Intermediate Scrutiny
Burden on State

Rational Basis
Burden on Plaintiff

Law must be necessary to achieve a

compelling government purpose.

Law must be substantially related to an

important government purpose.

Law must be rationally related to a

legitimate government interest

SUSPECT CLASSES
Race
National Origin
Alienage generally

(Gender) Government must show

exceedingly persuasive justification for
the discrimination

NON-SUSPECT CLASSIFICATIONS
Alienage classifications related
to self-government and
democratic process
Congressional regulation of
aliens
Age
Handicap
Wealth/Poverty
All other classifications

FUNDAMENTAL RIGHTS
Travel
Parenting
Marriage
Procreation
o Abortion = undue burden test
Voting
Gun Ownership
Privacy
Religion

CLASSES
Gender
Illegitimacy
Undocumented Alien Children
NON-FUNDAMENTAL RIGHTS
Right to Refuse Medical
Treatment (possibly)
Homosexual Activity
Restrictions

ALL OTHER NON-FUNDAMENTAL

RIGHTS

3. DOES THE LAW MEET THE LEVEL OF SCRUTINY?

Note: This chart is designed as teaching tool for the Washburn University School of Law Bar Services
Program. Though it is helpful for MBE bar exam study, it does not include a completely detailed and
exhaustive list of due process issues, standards, and violations that may exist in actual practice.