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Tatiana Zuniga
POS 4604
Professor Suh
March 28, 2017
Murdock and Baracus Midterm Essay

The marriage situation of B.A. Murdock and H.M. Baracus closely resembles two

Supreme Court cases during a time where not all marriages were legally recognized. In 1967 the

United States Supreme Court decided the case of Loving v. Virginia. In this case, Richard and

Mildred Loving were residents of Virginia, but during that time in 1967 Virginia did not

recognize interracial marriage, so the couple went to the District of Columbia to get married.

After getting married, the Lovings returned home to continue living in Virginia, but shortly after

they were arrested. As a result of their arrest they were giving the option to either spend one-year

in jail or become banned from living in Virginia for 25 years as punishment for violating

Virginias antimiscegenation law that prohibited interracial marriages. The Supreme Court was

confronted with deciding whether Virginias antimiscegenation law violated the equal protection

of the 14th amendment. The court held that the statute was unconstitutional and strict scrutiny

was applied. The law solely banned marriage between white individuals and minorities, but not

between minority races, therefore it was targeting a specific group.

Strict scrutiny is the highest level of judicial review. In order to apply strict scrutiny to a

case, a person must fall within the category of a suspect class. To fall within a suspect class, the

class must have experienced a history of discrimination, such as minorities who are politically

powerless and have an immutable characteristic. Race, national origin, religion, or alienage are

all examples of suspect classes that would warrant strict scrutiny. In order to meet strict scrutiny

there must be a compelling governmental interest and a law must be narrowly tailored and use
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the least restrictive means to satisfy that governmental interest. Strict scrutiny is the hardest level

to meet because the burden of proof is on the party challenging the government. In Loving v.

Virginia, the state did not have a compelling governmental interest to ban interracial marriage.

Another case with similar facts to Murdock and Baracus situation is United States v.

Windsor, the Supreme Court heard and decided this case in 2013. In Windsor a same-sex couple,

Edith Windsor and Thea Spyer, got married in Canada because same-sex marriage was not legal

in New York where the couple lived. Once Spyer died she left the estate to her wife, Edith

Windsor, but their marriage was not recognized under the Defense of Marriage Act (DOMA).

The act only defined marriage between a man and a woman, therefore excluding same-sex

marriages. Since the marriage was not recognized Windsor owed a larger tax bill than usual for

someone who is married because she did not receive the marital exception. Although Windsor

received an adjustment on the financial amount owned on the estate she continued with the

lawsuit in order to challenge the constitutionality of DOMA. As a result, the court recognized

that section 3 of DOMA was unconstitutional and despite the application of a level of scrutiny,

other circuit courts have looked to this case as using intermediate scrutiny as the appropriate

standard for LGBT discrimination.

Intermediate scrutiny is the scrutiny level above rational basis, but below strict scrutiny, it

is seen as the middle level of judicial review. In order to apply intermediate scrutiny there must

be discrimination on the basis of ones sex, falling within the category of a quasi-suspect class. In

Loving v. Virginia strict scrutiny was applied because there was a suspect class involved, unlike a

suspect class, a quasi-suspect class does not encompass race; instead it includes gender and

marital status. In order to satisfy intermediate scrutiny, a law must be substantially related in

order to achieve an important governmental objective. In intermediate scrutiny there is not a

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burden of proof to either party of a case. Each level of scrutiny requires different elements be

present in order to properly apply the level of review to varying cases.

In Loving v. Virginia and United States v. Windsor, an infringement on marriage was the

cause that led the parties to challenge the constitutionality of the acts. In both instances, the

Supreme Court decided that it was unconstitutional to discriminate against interracial marriage

and same-sex marriages. Applying the Pityfool law that deprives same-sex couples of the rights

and privileges of marriage for one year after they establish residency would be to ignore the

precedent that has already been established. The Pityfool law even takes away the privileges of

marriage even if it has been recognized by another state. Similar to United States v. Windsor,

Murdock and Baracus cannot even obtain suitable tax rates or healthcare together. DOMA has

already been ruled as unconstitutional and the Pityfool law contains similar functions of not

recognizing same-sex marriages, therefore it should also be unconstitutional.

Unlike Loving v. Virginia, Murdock and Baracus are not being discriminated on the basis

of marriage because they are in an interracial relationship, so strict scrutiny would not be applied

in this scenario. Loving v. Virginia can be used as persuasive authority because of the similar

facts, specifically the marriage being recognized in another jurisdiction and not the jurisdiction

that the couples reside in. Instead of applying strict scrutiny, the applicable standard of review

would be intermediate scrutiny; as previously defined, intermediate scrutiny encompasses

discrimination on the basis of sex. In the city of Pityfool there is not an important governmental

objective to ignore the rights of same-sex couples since United States v. Windsor gave Edith

Windsor an adjustment on the estate and allowed for marital benefits to exist within same-sex

marriages. The government has already acknowledged that marriage is no longer solely defined
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as a union between a man and a woman. The Pityfool law is unconstitutional and should be

overturned.

Murdock and Baracus also face another issue with their son Hannibals Catholic school,

which is currently under a preexisting desegregation order from the federal court. Murdock and

Baracus believe the countys plan to integrate the schools is unconstitutional because if one

qualifies as a minority they can choose to receive 10 bonus points or they can get a $1,000

property tax refund. Since this issue is dealing with race, the appropriate standard of review

would be strict scrutiny. Looking to Parents Involved in Community Schools v. Seattle School

District No. 1, a case from 2007, the Supreme Court declared that the state has a compelling

interest in racial classification with schools if they were remedying a past international

discrimination or if there was an interest in diversity in higher education, such as a university.

The facts of Murdock and Baracus situation is distinct from Parents Involved in Community

Schools v. Seattle School District No. 1 because the school in the 2007 case was not under a

desegregation order and the institution was not a private school, but the cases are similar because

they do not deal with higher education.

In the 2007 case, 8th grade students had the opportunity to choose their high schools. If

too many people applied to the school, they would go to a tiebreaker. The school looked to three

factors: if a student had a sibling attending the school, the race of a studentif the chosen school

was not within 10% points of the schools overall ratio the students who would aid in this ratio

were given priority, and a students proximity to a chosen school. The Supreme Court ruled that

the school system did not pass strict scrutiny because the two compelling government interests in

racial classifications with school were not met. Since the case was not dealing with higher

education, the interest in diversity was not present and the component of remedying a past
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intentional discrimination would also not apply. Affirmative action was applied in terms of

gaining admissions into the school, but was ultimately unsuccessful. Affirmative action was a

system designed to redress past discrimination and it entailed two componentspreferences and

quotas. Preferences and quotas made race a central factor in terms of competing for admissions.

The court saw that an educational benefit was not being achieved by using race as one of the

factors to gain admissions.

Another set of affirmative action cases with similar facts to Murdock and Baracus

situation are Grutter v. Bollinger and Gratz v. Bollinger both of these 2003 cases challenged the

University of Michigans admission policies. Gratz challenged undergraduate admissions, while

Grutter challenged admissions into the law school. In Gratz the University of Michigans

admission program gave bonuses to certain minority groups, while using different scoring

systems and reserved spots. The admissions process was then changed to a 100 point-based

system, with certain minority groups getting 20 points automatically for the mere fact that they

were classified as minorities. Jennifer Gratz, the plaintiff, was categorized into the universitys

well qualified system based off of her academic achievements, but despite that categorization

was denied admissions. Instead of admitting students based on merit, the school was focused on

the quotas component of affirmative action. In Gratz, the Supreme Court struck the program as

unconstitutional because it violated the equal protection clause.

In Grutter v. Bollinger, Barbara Grutter was categorized as a well-qualified candidate

for the University of Michigans law school, but she was denied after being put on the waiting

list. Unlike Gratz, the Grutter case did not entail points or specific reserved spots for minority

groups, instead the law school wanted a critical mass of minority students for admission. The

Supreme Court ruled the racial preference program as constitutional under strict scrutiny because
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the school employed a narrowly tailored approach by wanting to diversify their law program. In

the opinion, the Supreme Court stated that affirmative action is not intended as a necessary

component for the future and it may not exist beyond 25 years from the ruling. In Grutter, the

admissions process was acceptable because the school did not outline specific requirements for

the admissions of minority students; they simply wanted a diverse class. It is when an institution

tries to regulate specific numbers and ways to admit minorities over other qualified individuals

that affirmative action becomes unconstitutional.

In terms of being similar to Hannibals schooling situation, Gratz would most closely

align with the facts over Grutter because of the 10 bonus points or $1,000 property tax refund

incentive for minority students. Since the 10 points or $1,000 refund are specific incentives

intended to target minority students, the school would be looking to accept students solely to

meet their quotas. The only way for a student to receive the incentives is if they qualify as a

designated minority and as determined in Gratz v. Bollinger, this acceptance system would

violate the equal protection clause. As noted in Parents Involved in Community Schools v. Seattle

School District No. 1, the government has a compelling governmental interest in racial

classification with schools because there is an interest in diversity in higher education. Gratz v.

Bollinger should still be used as persuasive authority despite the difference between Hannibals

school and the higher education institution in Gratz. The integration practice in Hannibals

school can be seen as unconstitutional because the point system is used to discriminate.

Another factor to consider when reviewing Hannibals situation is that he is attending a

Catholic school and usually those schools are private entities. Private schools are not given

public funds; therefore they are not an entity of the state and are free from state regulation. The

Pityfool County Schools plan to integrate its students would not apply to Hannibals school, but
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even if Hannibals school chose to implement this integration plan, it would not be

unconstitutional when implemented in a private institution. The integration practice can be seen

as unconstitutional on its face, but when applied to Hannibals private school it is not.

In Moose Lodge No. 107 v. Irvis, a white member of the lodge invited Irvis as a guest.

Irvis was black and because of his race, was denied service. Since the Moose Lodge was a

private institution it was up to their discretion to determine whom they would admit into and

provide service to while in the club, even while discriminating on the basis of race. If the club

was a public institution, then state action would apply and it would be considered a violation of

the Equal Protection Clause, but the state did not control the Moose Lodge club. Irvis sued the

lodge claiming that granting the club a liquor license constituted as state action. The Supreme

Court held that issuing a liquor license was not state action under the 14 th Amendments Equal

Protection Clause. The opinion of the court also noted that the Supreme Court has never held that

discrimination by private entities would be violative of the Equal Protection clause even if the

private institution receives benefits or services from the state. Even though the state granted the

club a liquor license, the Moose Lodge is not under the regulation of the state.

If Hannibals Catholic school wanted to implement the integration plan they have the

right to admit their students with the 10 bonus point or $1,000 property tax refund incentive.

Doing so would not entail their practice unconstitutional because they are private, but on the

other hand they do not necessarily need to implement the Pityfool County Plan because they are

a private entity that is not under the control of the state. The integration plan would be seen as

unconstitutional for public schools because of the quota-point system, but private schools are

free to regulate how they deem necessary without control by the state.