BILL OF RIGHTS First ten amendments explicitly apply to the federal government. However, the due process clause of the 14th amendment acts as a conduit by which these bill of rights limitations are made applicable to the states. This is known as selective incorporation. The only rights not selectively incorporated are: right to bear arms, right to a grand jury in criminal cases, right to jury trial in civil cases and right against excessive bail. DUE PROCESS AND EQUAL PROTECTION RATIONAL BASIS Both Due Process and Equal Protection apply the rational basis test. Rational basis is the default test when no other test applies (i.e. no suspect classification, fundamental rights or racial classification). 1. Is it due process or equal protection? a. Due process analysis applies when the law affects all persons. Equal protection should be raised when you are concerned with the overall law. b. Equal protection should be raised when there are persons similarly situated that are being treated differently. 2. Basic Rational Basis Test: Must rationally relate to any conceivable permissible governmental end. a. BURDEN is on the Plaintiff. b. All the court cares about is whether there is a legitimate governmental end whereby it is conceivable that the law advances that end. c. Thus, even if there is evidence that a law is being passed for a bad reason (i.e. to please lobbyists) it does not matter if it passes the test. d. The court can and will speculate as to what the legitimate governmental end may be. e. To defeat rational basis, you must show that there is no possibility of any connection to a legitimate governmental end. This is a very high burden. MORE SEARCHING RATIONAL BASIS Test: Same test but rather than conceivable state end, courts will focus more closely on the actual reasons for passing the law as opposed to any conceivable reasons. More searching rational basis test should be used as an alternative discussion only in one of these two situations: 1. When a politically unpopular group is being singled out because they are not well liked. a. Examples: Retarded, homosexual, elderly, children of illegal aliens, out of state v. in state companies. 2. When a closer application of the rational basis test may lead to a different result. CONTRACTS CLAUSE Contracts clause (only applies to states): This prevents the states from impairing pre-existing obligations of both public and private contracts unless there is significant public need. 1. Public Purpose Balancing Test: (1) There has to be substantial impairment, (2) it must be justified by some significant legitimate purpose, and (3) the changes to pre-existing contractual rights are based upon reasonable conditions. a. Substantial Impairment: Must be more than deminimus but less than total destruction Look at the severity of the impairment Look at the degree it destroys reasonable investment based expectations Look at the degree to which the government has regulated the activity in the past b. Legitimate Purpose: Look to see how important the governmental interest is Court is more likely to justify temporary measures
Court requires stronger purpose where government is impairing its own contract c. Reasonable Conditions: Must assess the degree to which the court reasonably balances the harm done to the K v. promoting the public interest Look to see whether or not the contractual rights were fairly treated In making this determination the court will defer to the legislation 2. When is public purpose balancing test NOT applied? a. A state law, which prospectively impairs contractual rights, gets a due process rational basis level of review. b. A federal law impairing contractual relations gets a due process rational basis level of review. NO TAKINGS CLAUSE The government (state or federal) may NOT take private property for a public purpose without just compensation. In order to constitute a taking it must be a (1) confiscation or physical occupation, or (2) a regulation which leaves the owner no reasonable economically viable use for the land. 1. For public use: presumed because if the government wants to pay for it is for public use. a. Note: Government can use power of eminent domain and give property to another private person and still have it qualify as public use. 2. Just compensation: FMV prior to the governmental taking a. Hypo: Government “takes” property but then decides it wants to give it back. Government has two choices: (1) take property and pay FMV, or (2) if it cancels its taking they must compensate the owner for the period of time in which the use was limited. 3. What is a taking? There is a fine line between compensable takings and simple regulations. a. Compensable Taking Examples: Per se taking #1: Zoning laws taking away “all economically viable use” Exception: When taking is necessary to abate a nuisance or some other governmental interest (example: cedar tree dust, production of alcohol). Per se taking #2: Physical appropriation. This can be when the government passes regulations that compel the property owner to suffer a physical invasion of dust, smell or noise. Penn Central Test: (1) look at the economic harm, (2) assess the harm to reasonable investment based expectations, and (3) consider the nature/fairness of the taking. b. Not Compensable Takings Examples: Zoning laws are not generally compensable takings (Penn Central) 4. Three ways property can be taken: a. Eminent Domain: Power of government to take private property for public use. b. Inverse Condemnation: When government entity takes without using eminent domain (i.e. airport emits excessive noise and interference with use of surrounding land). c. Police Power: State generally passes some type of ordinances for health and safety purposes which may affect private property enough to constitute a taking. This is the typical defense of the government in a takings situation. 5. Exactions: A taking which takes the form of a condition imposed for the change in use of property. For example, making the law school handicap accessible upon expansion. Exactions get a different test: (1) there must be an essential nexus between the exaction and the reason for the taking, and (2) the exaction must bear a rough proportionality to the harm.
FUNDAMENTAL RIGHTS: COMPELLING STATE INTEREST TEST Under the due process clause of the 14 th there are three fundamental rights: right to privacy, right to vote, and right to travel interstate. When you see a law limiting any of these fundamental rights gets a compelling state interest level of review. 1. Test: There must be a compelling state interest and the law limiting fundamental rights must be narrowly tailored to accomplish those ends. In assessing whether or not the law is narrowly tailored, the court will consider whether there are reasonable adequate alternative ways of addressing the problem. FUNDAMENTAL RIGHT TO PRIVACY (compelling state interest) In right to privacy situations the level of review is compelling state interest. What interests are involved in the fundamental right to privacy? 1. Contraception: There is a fundamental right of all adults (married or unmarried) to use contraception and make procreation decisions. a. Minors get rational basis level of review. 2. Abortion: There is a fundamental right of a woman to choose to have an abortion without interference from the state before viability. However, normal strict scrutiny is not used because there are two competing interests: protecting the woman’s health v. protecting the fetus. Therefore, under Casey, before viability the states may not prohibit abortions but may adopt regulations, which do not impose an undue burden. After viability, a state may pass laws prohibiting abortion, except where it is necessary to preserve the life and health of the mother rational basis. a. Undue burden test: an undue burden exists if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Examples of no undue burden: Requirement of informed consent of the woman (passes UB but not CSI) Detailed confidential record keeping at abortion facilities Consent of one parent before an un-emancipated minor (under 18 and living at home) may receive an abortion - Parental consent: must have judicial bypass: (1) judge must have authority to determine the minor is sufficiently mature to make decision herself, or (2) if not mature, then judge must be able to decide the abortion is in the minor’s best interest. Requirement of late 2nd term testing Requirement of 2nd doctor in case fetus is viable in late 2 nd term cases 24 hour wait period (passes UB but not CSI) Examples of undue burden: Both parents consent Spousal consent Complete ban on partial birth Overly detailed record keeping available for public use b. Abortion Funding: Abortion funding decisions (direct or indirect) get rational basis level of review. Examples: There is no right to subsidized abortions for indigents. There is no duty to provide abortions in public hospitals. Law eliminating federal funding if Planned Parenthood provided info on abortions was upheld. 3. Marriage: There is a fundamental right to marry. a. Reasonable regulations of marriage that do not significantly limit the right to marry get a rational basis level of review.
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Examples: laws forbidding marriage to 1st cousins, marriage license laws, and requirement that marriage is between man and woman (this may change). Hypo: Law allowing same sex marriage, but not allowed if going to marry first cousin. Rational basis level of review because purpose of law is to prevent mental retardation in kids, but with regard to gay marriage – not a legitimate concern. b. Unreasonable regulations of marriage that significantly limit the right to marry get a compelling state interest level of review. Example: State law forbidding interracial marriage was struck down. Example: Statute forbidding father to remarry unless current in support payments was struck down. Education (private): There is a fundamental right of parents to privately educate their children. a. There is no general fundamental right to education. Thus, the appropriate level of review is rational basis. b. When education is totally denied to a discrete underclass of children while being freely provided for other classes, the Court has applied a middle tier level of review, that only a law furthering substantial state interest will satisfy equal protection. Illegal alien children have a right to free public education thru 12 th grade Family Relationships: There is a fundamental right to keep the family unit together. Must be related. a. Example: Zoning ordinance, prohibiting cohabitation of non-immediate family members (cousins, grandparents) was struck down. Note: A city may restrict unrelated persons form living together. b. Compare: A local ordinance limiting dwellings to a single family, but defining a family to mean not more than two unrelated persons, does not violate due process and gets a rational basis level of review. c. Rational Basis: A state statute establishing a conclusive presumption that a child born to a married woman cohabiting with her husband is a child of the marriage does not violate the substantive due process rights of the natural father or the child Protect marriage. Refuse Medical Care: There is a right to refuse medical treatment. This is not necessarily a fundamental right but is associated with right to privacy. a. Example: State law that if there is clear and convincing evidence that a person does not want to live in vegetative state then they will not have to stay on life support. Parents who want to keep her on life support challenge law, and the standard is compelling state interest. b. Assisted suicide not a fundamental right (due process rational basis). Confidential Information: Court has NOT decided whether there exists a right of privacy to keep information confidential. What the Right to Privacy DOES NOT include? a. There is no fundamental right to engage in homosexual sodomy – gets rational basis test. b. There is no fundamental right to physician assisted suicide – gets rational basis.
FUNDAMENTAL RIGHT TO VOTE (compelling state interest) While there is no right to vote enumerated in the Constitution, the Court has recognized that the right to vote is a fundamental right. This is an equal protections issue. 1. Right to Cast Ballot: When the government significantly burdens the rights to vote by imposing qualifications on voting beyond age, citizenship, wealth, and residence in the jurisdiction compelling state interest test applies. a. Examples: Poll taxes: are seen as a wealth based classification – no compelling state interest
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Durational residency requirements: there is no compelling state interest for requiring a one year durational residency before you can vote, but you can have a durational residency requirement that is long enough to get an accurate voter list (50 days). b. Exception: If a district has such a special limited purpose that it is not truly a governmental body and if the districts affected have a disproportionate effect on certain segments of the populace, the right to vote can be reasonably limited to the affected group. Example: A law permitting only landowner to vote in water storage district general elections and apportioning votes in those elections according to the assessed valuation of land was said to be constitutional. But: Municipal ordinance that say only landowners and parents of school children can vote in school district election is unconstitutional. c. Note: Constitutional to take away votes of felons. Reapportionment: As a general principle there is a one person, one vote rule. a. Federal re-apportionment standard: as nearly equal as is practicable to one person, one vote to pass EP. b. State re-apportionment standard: substantial equality to one person, one vote (based on population) to pass EP Use of Race in Voting: The use of race in drawing election district lines gets a compelling state interest level of review. When race is used to draw district lines to exclude racial minorities from effective political participation, it violates equal protection and the 15 th amendment – compelling state interest test. a. It is constitutional, however, to use race for the benign purpose of giving minorities the better chance to get elected for office. For example, a district might be redrawn to include a majority of democrats since an overwhelming number of minorities are democrat (minority = democrat). However, it is unconstitutional to use race as the sole determination in shaping of districts. Gerrymandering (shape of district): Unconstitutional discrimination occurs when the districts are drawn up in a way which will consistently degrade a voter or a group of voter’s influence on the political process on a whole. a. Mere lack of proportional representation will not be sufficient. Standard for Being on the Ballot/Access to Ballot: The standard is that the judgments regarding who gets on the ballot must be reasonably related to making the ballot manageable fundamental right but no compelling state interest. a. Example: Cannot have 5000 people on the ballot – state must be able to regulate Bush v. Gore: The Bush v. Gore decision supports and reinforces the proposition that the right to vote is fundamental and applying different standards as to the crucial votes is a violation of the Equal Protection clause using a compelling state interest level of review.
FUNDAMENTAL RIGHT TO TRAVEL (compelling state interest) The fundamental right to travel interstate gets a compelling state interest level of review. 1. The Supreme Court says that durational residency requirements, which penalize the fundamental right to travel by impacting necessities of life or other fundamental rights must survive compelling state interest test. a. Examples durational residency requirement unconstitutional: To receive non-emergency medical services To be eligible for library services To receive welfare Voting in state elections (1 year) b. But durational residency requirement upheld:
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Reduced tuition at state universities Obtaining divorce proceedings (1 year) Voting in state elections (50 days) If you do not have a durational residency requirement that impacts a necessity of life then you will get a rational basis level of review. Laws involving residence only gets a rational basis level of review. a. Examples: Resident before you can be a fireman Resident before you can receive welfare Resident before you can vote Foreign travel is governed by rational basis: Reasonable restrictions on passport use have been upheld for national security concerns. CONSIDER Privileges and Immunities argument too
EQUAL PROTECTION The 14th amendment provides that no state shall deny any person equal protection of the laws. This is made applicable to the federal government by the due process clause of the 5 th amendment. Equal protection should be raised when there are persons similarly situated that are being treated differently. The focus is on the classifications that are unreasonable and arbitrary. Three standards of review under equal protection: 1. Strict Scrutiny: Applies to protected 1 st amendment rights, to suspect classes (race, alienage, national origin), and to fundamental rights (right to privacy, vote, travel). Compelling state interest test is applied. a. A class is suspect if it has characteristics, which are un-alterable, and there is a history of unequal treatment. When a class is suspect, the burden is on the government to show that the law affecting the suspect class is necessary to a compelling state interest. In order for a law to be necessary there can be no other alternative less restrictive means to accomplish its purpose. 2. Middle Tier Scrutiny: Applies to classifications of gender, illegitimacy, illegal alien children (have a right to free education thru 12 th grade), content neutral speech (time, place, and manner), and regulation of cable TV. a. In middle tier scrutiny situations, the burden is on the government to show that the law is substantially related to an important interest. This is closer to strict scrutiny than rational basis in that to be substantially related there must be exceedingly persuasive justification. 3. Rational Basis: Applies to all other classifications, most common of which are poverty, wealth, age, mental retardation, necessities of life (food shelter, clothing, medical care), and social and economic welfare measures. In rational basis situations, the burden is on the Plaintiff to show that the law affecting this classification does not rationally relate to any legitimate governmental interest. RACE BASED CLASSIFICATIONS (strict scrutiny/compelling state interest) In order to justify a classification based upon race, there must be a compelling state interest independent of discrimination and the law must be narrowly tailored to accomplish that end. 2. As a general rule, de jure discrimination (purposeful and intentional) is needed to trigger strict scrutiny. De facto discrimination (unintentional, without purposeful motive, historical economic factors – but discriminatory effect) does not violate equal protection – usually upheld applying rational basis test. 3. Racial Segregation in Schools and Other Public Facilities (beaches and parks): The analysis asks whether there is intentional (de jure) segregation and if so what is the appropriate remedy.
a. There must have been an intentional governmental act (by school board, city) that created the segregation and there is continuing harm. b. The remedy for de jure segregation is limited to the harm created. When the government has remedied the last vestiges of segregation as practicable, then the courts no longer have power to step in. c. Race as a classifier to remedy a race-based wrong can be used in desegregation. However, the use of inflexible quotas is not allowed. d. Acceptable solutions: site selections, teacher selections, and zoning can be used to remedy the situation. e. Bussing: should be viewed as a temporary measure to remedy passed discrimination in order to pass compelling state interest. f. Single race schools: may exist after desegregation, are not evidence of failure, and do not by itself establish an equal protections issue. g. NOT acceptable: Court may not order salary increases and funding of remedial programs designed to increase desegregation and attractiveness as a remedy for past discrimination. 3. Race Based Affirmative Action: Classifications advantaging minorities. This often comes up in University admissions policies and government contracts (i.e. 10% of work to minorities). The compelling state interest test for benign race based classifications is broken down into four factors: a. Narrowness of the purpose; Look for: narrowly drawn race based programs designed to remedy specific identified illegal racial discrimination. Making up for historical societal discrimination as a purpose for affirmative action is too broad and does not pass compelling state interest test. b. The degree of advantage to racial minorities; Absolute advantages do not pass compelling state interest (i.e. quotas) but a consideration in terms of goals and objectives in terms of race is acceptable. Universities cannot establish quotas for members of certain racial or ethnic groups or put them on separate admission tracks. Race or ethnicity, however, may be considered a plus in the particular applicants file. Diversity may be achieved by using a narrowly tailored admissions program that considers all elements without making race or ethnicity a defining character of the application. Giving 20 of 100 points needed to gain admission solely because of race is not constitutional. A goal of 20% minority is acceptable. c. The degree of disadvantage to majority persons; and The full burden of an affirmative action program may not be placed on a particular group – but disadvantage to the majority to some degree is to be expected. Majority cannot be fired based on affirmative action program. d. The overall flexibility of the law. More flexible the better – one reason why racial quotas do not pass compelling state interest. 5. Washington v. Davis: Neutral law which has a disproportionate impact on race or gender. Basic approach is when there are neutral classifications which would normally get a rational basis level of review, but have a disproportionate racial or gender impact, still get a rational basis test unless it can be proven that the law was passed for a discriminatory motive in which case it is per se unconstitutional. a. Example of per se invalid: Law passed saying you can vote if you passed a test or you could not vote unless your grandparents voted – passed for purpose of making a racebased exclusion.
6. NOTE: It has been held per se invalid to have voting restrictions which leads to absolute exclusion based upon race (15 th amendment: race cannot be a basis of who can vote). CLASSIFICATION BASED UPON ALIENAGE (sometimes suspect) Classifications based upon alienage either get rational basis or a compelling state interest test. 1. Federal Government: Congress has the power to regulate immigration, therefore any federal laws affecting the rights of aliens get a rational basis level of review. a. Example: Law requiring five year residency requirement to get medicare was upheld subject to rational basis. 2. State Government: Most state laws classifying based upon alienage as to state benefits must pass the compelling state interest test. a. Examples: welfare benefits, government employment, bar admissions no compelling state interest. 3. Political Function: State laws classifying for the purpose of state jobs related to the political function must only pass rational basis. a. What is political function? State jobs of some importance involving a high level of discretion. Police officers, school teachers, probation officers, and serving on jury. GENDER BASED CLASSIFICATIONS (middle tier scrutiny) Any classification that treats women and men differently middle tier scrutiny should be applied. The burden is on the government to show that classifications based upon gender substantially relate to important governmental interests OR the justification for gender discrimination is exceedingly persuasive. Similar to race, purposeful or intentional gender discrimination is required. 1. Example of gender discrimination: a. A law which discriminates against fathers in favor of mothers, where the parents are similarly situated except for their gender, violates equal protection. State law requiring only men to pay alimony struck down using middle tier. b. Whenever you see a law implying archaic sexual stereotypes it should be struck down. Woman only nursing policy struck down because of reinforced archaic sexual stereotype. Alimony example fits here too. c. Classifications treating mothers differently than fathers who are similarly situated get middle tier level of review. 2. No gender discrimination: a. State law giving hiring preferences to veterans for civil service jobs, when 99% of veterans are male, has a clear discriminatory effect but was not intentional – rational basis level of review. b. Laws passed for the purpose of making up for historical discrimination against women can pass middle tier scrutiny as long as there are no reasonable alternatives. Court has said these need to be moderate and flexible overall. Title IX legislation c. Statutory rape laws making men alone criminally liable for act of sexual intercourse with a female minor is upheld because governmental interest of preventing illegitimate teenage pregnancy. d. Statute authorizing male only draft registration because the sexes are not similarly situated in regard to the need to provide combat troops. 3. Classifications based on Pregnancy: Courts do not consider this gender-based – rational basis level of review.
CLASSIFICATIONS BASED UPON ILLEGITIMACY (middle tier scrutiny) Laws benefiting legitimate children and/or prejudicing illegitimates is likely unconstitutional applying middle tier scrutiny. In this situation, the burden is on the government to show that the classification is substantially related to a permissible or important governmental interest. This is similar to gender based test but is less strict. 1. Examples: a. State law saying illegitimate children could not collect tort damages for the wrongful death of their mother and mothers could not collect for the wrongful death of their illegitimate children was struck down. b. State law preventing illegitimate children from inheriting through father was struck down because the court found that it was not the least restrictive alternative means to preventing false paternity claims. 2. Laws upheld applying middle tier: a. State law allowing illegitimate children to inherit through father only if court order prior to death stating father recognized the child as his own and such court order was within 2 (Lalli case) or 6 (Clark case) years of the birth was upheld. b. Federal law automatically giving SS benefits to legitimate kids but requiring illegitimate kids to prove dependency was upheld. c. State law saying illegitimate children could not inherit through intestate secession from their fathers unless the father had formally acknowledged the child during life was upheld. d. Generally, child has until majority to establish paternity of father. NON-SUSPECT CLASSIFICATIONS (rational basis) One who challenges a law on the basis of equal protection in dealing with non-suspect classifications has the burden of showing that the classification has no rational basis relationship to a permissible governmental end. 1. ASK: is it a suspect class or a fundamental right? If not then apply rational basis. This is the default test. 2. Classifications that are NOT suspect? a. mental retardation b. classifications based on age (elderly) c. classifications based on wealth d. homosexuals 3. Examples of legislation that classifies getting rational basis level of review: a. Truck advertising case: city ordinance prohibited ads on side of trucks but made an exception for those who owned trucks which were used to advertise their own business. Law was challenged because a line was drawn between the types of advertisers. Government concerns were for distracting signs causing accidents. Court held city may have reasonably concluded that private business owners who advertised would have less distracting ads. b. Mentally ill v. mentally retarded: Different standards for committing mentally retarded individuals (clear and convincing) and mentally ill individuals (beyond a reasonable doubt), was upheld because of rational basis. Court held that it is rational to use different standards since mental retardation is easier to diagnose and commitment is less harsh. PROCEDURAL DUE PROCESS The procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty or property interest. To determine if a person should be afforded a
hearing, the court will balance the severity of the deprivation to the individual against the governmental interest in administrative efficiency. 1. Timing: If you are entitled to PDP, the hearing must occur before the deprivation of the liberty or property interest. The only exception is in exigency situations where the deprivation can precede the hearing. 2. Test: a. You need an adjudicative judge like decision; AND Individualized case-by-case judge like decisions raise PDP issues. The key is whether or not there is an issue to have a hearing on. Note: If the “procedure” is to make a decision without consideration or a hearing, then it is NOT an adjudicative judge like decision, it is something else (substantive due process or equal protection). Example: Law says if police officer declares bankruptcy he will be fired due to a concern for corruption not notice or hearing, just fired. Since there is no caseby-case determination there is no PDP issue (this may be a equal protection issue – not suspect class so RB test). Judge can be: principal or vice principal, DMV, the Court b. A taking of a liberty or property interest. What are liberty interests? Liberty interests are implicitly protected by the Constitution or can be crated by state law. Right to contract Right to engage in gainful employment: o Example: Individual attempts to set up store, buys equipment and applies for license with city. City rejects his license without explanation despite the fact he seemingly met all the necessary requirements. He should have been given notice and a hearing Right of natural parents in care and custody of their children Right to refuse unwanted medical procedures Interest to be free from institutional confinement Right to travel Right to vote Freedom of Privacy Freedom of speech Reputation: along is not a liberty interest but can be closely tied to some other interest to be considered a liberty interest What are property interests? Property interests are strictly dependant on the law creating such interest. Welfare benefits Disability benefits Right to public education: HS student should get a hearing prior to being suspended. Garnishment of wages Continued Public Employment: Opportunity to be heard when an individual is terminable for cause (tenured teachers and civil service employees). Government debt collection c. The level of PDP you get varies depending upon the level of the interest at stake. You must balance the importance of the private interests affected by the judicial like decision, the competing state interests, and the level of accuracy. DOCTRINE OF IRREBUTTABLE PRESUMPTIONS
An irrebuttable presumption classifies and usually raises an equal protections issue. They typically get rational basis level of review. 1. PDP issues: When the law makes something an irrebutable presumption that is worthy of a hearing (fault, residency, fitness of father), there is a pre-hearing deprivation of rights, and then later on they schedule a hearing. a. Examples: Auto Accident: Law says if you are involved in auto accident without insurance, the law presumes you are at fault. As a result, your license is automatically suspended, and then a hearing is scheduled later. Since fault has been made an issue, the hearing should take place BEFORE your license is suspended. This is an irrebuttable presumption that violated PDP. Do not confuse this with a law that says your license is automatically suspended if you do not have insurance. Here, the law is not making fault an issue. Therefore, rational basis due process issue. Parental Fitness: Law says that fathers of illegitimate children are presumptively unfit to be parents. Kids are automatically removed, and then later on there is a right to have a haring on the issue of parental fitness. You should be entitled to have a hearing on the fitness issue before the children are taken away. This is an irrebuttable presumption that violated PDP. Fraud: Law says irrebuttable presumption that if married for less than 9 months you are not entitled to certain benefits. This could have been a PDP, but Court said this was an EP issue that passes rational basis. STATE ACTION State action is a threshold requirement of governmental conduct, which must be satisfied before private discrimination can be restricted under the 14 th and 15th amendments. In other words, before discussing EP or DP state action is a procedural hurdle. 1. If you have government employee, or city, state or federal government action, then you do not have a state action issue. 2. To determine non-obvious involvement by the government you must sift facts and weigh circumstances to attribute government culpability. There are three types of state action: a. Public Function: This is a situation where a private entity is performing activities traditionally and exclusively carried on by the state. Example: Company town. No state action: privately held utility company under heavy state regulation. b. Significant State Involvement: The court looks to the aggregate of the contacts between the private individual doing the discrimination and the government itself to see if there is a symbiotic relationship or significant state involvement. Example: Acts of a public school, restaurant on city leased property, and private school that purchases textbooks from state. No state action: Business with state granted liquor license, and private school licensed by the state, NCAA because private entities make up the bulk of its schools. c. Facilitation or Encouragement: This is when the government encourages or facilitates private discrimination. Example: State enforced a racially discriminatory zoning ordinance. No state action: Private schools licensed by the state. ENUMERATED POWERS ISSUES Can Congress pass legislation to reach private acts? Yes, under the 13 th and 14th amendments.
1. Congress can reach private acts under the 13 th amendment if two elements are met: (1) legislation involves preventing racial discrimination and (2) legislation involves a badge of slavery or involuntary servitude. a. State action is not required under the 13th amendment. b. This type of legislation gets rational basis level of review. c. Badges of slavery refer to any kind of restriction imposed on slaves: vote, education, traveling interstate, capacity to contract, and ownership of property. d. Example: Congress can pass a law that says no discrimination in the sale or rental of property, private or public. Thus, if a private individual discriminates no state action is needed to bring a lawsuit. 2. Congress can reach private acts under the 14 th amendment’s privileges and immunities clause. Congress has the inherent power to protect the essential attributes of being a citizen: (1) sailing navigable waters, (2) being protected while in custody of a federal marshal, (3) right to petition Congress, and (4) right to travel interstate. a. Congress can make it a crime to interfere with someone traveling interstate. Look out for private interference. b. Example: Residency requirement to collect unemployment for new arrivals in CA interfered with right to travel interstate.