Professional Documents
Culture Documents
Fundamental rights are either (1) deeply rooted in history and tradition, or (2) deeply connected with another recognized fundamental right (i.e., you cannot have a fair trial without having a fair opportunity to be heard penumbra theory).
Determine whether (and to what extent) the right was infringed upon
Is the government action a mere inconvenience that poses no direct legal obstacle to a persons ability to enjoy the liberty interest at issue, or does the government action substantially interfere with a persons ability to enjoy their liberty interest? Once you answer question 2, you have found your answer to question 3.
3.
4. !
Determine whether (i) the plaintiff can prove that the law/regulation is arbitrary or unreasonable, or (ii) whether the government can carry the burden of proving that the government action that infringes upon the claimants rights is sufficiently related to that constitutionally-sufficient purpose. See back for the specific language.
Tvctuboujwf!Evf!Qspdftt!Gmpx!Dibsu;!
Is there a fundamental right at issue?
Yes
Indirect and/or insubstantial interference with a fundamental
right. No direct bar.
Example: the consequences of marriage on a persons eligibility for social security benefits)
No
Substantial (i.e., significant) and direct interference legal obstacle to the enjoyment of a fundamental right.
Example: banning interracial marriages.
Uifsf!jt!b!gvoebnfoubm!sjhiu!up;!
1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
buy and use contraceptives (note: you also have a right to procreate or to simply practice how to procreate!) travel (from state to state) abortion (without substantial interference during the first trimester) marry (with qualifications) (note: think freedom of association) live w/ members of ones extended family (note: no fundamental right to live w/ unrelated persons) view Obscene stuff in your home (note: think privacy and freedom from unreasonable search & seizure) when indigent, obtain a divorce w/out the necessity of a filing fee engage in sodomy (particular sexual conduct, so long as it is between two (or more) consenting adults custody of your child & a right to control (or make decisions for) your minor child etc . . .
Although the U.S. Supreme Court has identified certain liberties as fundamental rights, State Constitutions may provide additional protections. Therefore, what may not be a fundamental right under the federal constitution may be a fundamental right under a particular state constitution. Always check the law of your jurisdiction.
EQUAL PROTECTION
No state shall [. . .] deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const., Amend. XIV.
Bobmztjt!
1. Is there a GROUP BASED classification/distinction in the statute or ordinance? 2. What is the CLASSIFICATION?
How is the government drawing a distiction amongst people
4.
Sbujpobm!Cbtjt!Sfwjfx!
Under the rational basis standard, a law will be upheld if it is rationally related to a legitimate interest. o Great deference given to the government o o Burden on the to prove no rational/legitimate purpose o o Almost any conceivable legitimate purpose will suffice o Most governmental action examined under this standard is upheld unless it is; 1. Arbitrary, 2. Irrational/Unreasonable, or 3. Animus: Designed to harm a politically unpopular group
There may be a more stringent test in some situations known as the rational test with bite where the government bears the burden of proof. (ex., mental disability; sexual orientation)
Joufsnfejbuf!Tdsvujoz!
Under the intermediate scrutiny standard, a law will be upheld if it is substantially related to achieving an important government objective. o The government carries the burden of showing an exceedingly pursuasive justification for the classification o o Unconstitutional: gender classfication(s) based on role stereotypes o o Constitutional: classifications designed to remedy (i) past discrimination, and (ii) differences in opportunity
(i.e., societal discrimination)
Tusjdu!Tdsvujoz!
Under Strict Scrutiny, a law will be upheld if it is necessary to achieving a compelling government interest. o Remedial Purpose o Judicial Remedy:Injunctive Relief o Diversity in Education o Affirmative Action o To survive Strict Scrutiny, government action must be; 1. Necessary no less restrictive alternative(s) exist 2. Justification may require a documented pattern of wide spread discrimination 3. Narrowly tailored (i) neither overinclusive or underinclusive, (ii) (3rd Party) undue burden analysis, (iii) congruent & proportional to address the identified evil or harm. What makes a classification, inherently suspect ? 1. History: severe & pervasive discrimination, 2. insular & discrete minority, 3. immutable traits, and 4. inability to represent themselves or secure rights. Strict Scrutiny 1. Race (Loving v. Virginia) 2. National Origin 3. Alienage 4. Fundamental Right(s) 5. Marriage is not a full on fundamental right conduct the Jobst Analysis Intermediate Scrutiny! Rational Basis Review 1. Age 2. Sexual Orientation 3. Disability 4. Wealth/The Poor (Zablocki) 5. etc.,
rational basis w/a bite
1. Gender 2. Legitimacy