Equal Protection Analysis Does the statute fall under the purview of the Equal Protection Clause? o The State “cannot deny anyone it its jurisdiction the equal protection of the laws.” Distinguish between DeFacto and DeJure discrimination:
DeJure: - Facially Discriminatory? o Suspect Class (Race, Origin, Alienage) o Quasi-Suspect Class (Gender) o Non-Suspect Class (Age, Wealth, Economics, Sexual Orientation) Suspect Class (Race) o Apply Strict Scrutiny Standard: Narrowly tailored to; Achieve a compelling government interest. Remedying past discrimination (Brown I). Achieving racial diversity in schools (Brown II). Protecting fundamental rights (Loving). Quasi-Suspect Class (Gender) o Is there discrimination against gender stereotypes? If no – The law was constructed that separated men and women for reasons other than their gender (i.e. – ability to become pregnant). o If yes – Apply Intermediate Scrutiny Standard (Craig Standard). Substantially related To an important governmental interest Health, Welfare, Public Question. Non-Suspect Class (Age, Wealth, Sexual Orientation) o Apply Rational Basis Test: Rationally Related to; A legitimate government interest. Sexual Orientation – Romer Wealth – Kramer
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OR DeFacto - Discrimination is neutral on its face, but law may have been administered in a discriminatory way. o Intent? No Intent – Rational Relation: o Rationally Related to o A legitimate state interest Intent – Prove by: o Disparate impact o Departure form procedure by state. o Departure from criteria applied by the state o Legislative history
If proven – Burden will jump back to the state and the Court will apply the strict scrutiny standard. o Narrowly tailored to o Achieve a compelling state interest Note: State must prove that if the intent were taken away, the same result would have been reached.