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Con Law: Equal Protection, 2009

1. Recurring theme: everyone agrees that the US committed mistakes in history; the Civil
War was a complete failure of the political system. The q is: what lessons do we learn
from history? This is a study of how the American society learns from its mistakes, the
lessons it learns and the impact of history on these issues.
2. 13th A: abolished slavery
3. 14th A:
A. Privileges or Immunities: doesn’t have much bite; “privileges or immunities” has
never been clearly defined; is not the basis for implied fundamental rights
i. Was likely seen by the drafters as a key protection of equality; so
privileges/immunities were to be given equally but nonprivileges or
nonimmunities could be applied unequally, ie public education which was not
considered a privilege
B. Due Process: can’t deprive life, liberty or property w/o substantive and procedural
due process
C. Equal Protection:as it’s written, it doesn’t say that people ought to be treated equally;
at time of drafting, it was meant for equality w/ respect to protection in terms of
crim/tort law. Keeping black kids out of white schools was ok b/c that’s not a
“protection.” In the modern day interpretation, “protection” has dropped out.
4. 15th A: Gave blacks (males) the right to vote.




Two analytical tracks:

• When are laws that explicitly discriminate against a minority group unconstitutional?
Strauder, Korematsu
• Is segregation ok as long as the segregated group is treated equally? Plessy, Brown

1. Originalist/Textualist 14th: blacks get equal protection in terms of crim and tort law
protections (since public schooling is not a “protection,” it need not be distributed
2. Modern/Strauder 14th: in terms of equal protection, it doesn’t matter what is being
distributed; blacks are entitled to all the rights that whites get
3. CASE: Strauder v WV
A. Facts: D was tried and convicted by an all-white jury. He challenged the WV law that
only allowed whites to serve on juries.
B. Held: WV’s law is unconstitutional. D has the right to a jury that is selected from a
mixed pool that includes blacks.
C. Exactly whose rights were violated? D’s rights or blacks who wanted to serve
but couldn’t?

Con Law: Equal Protection, 2009

i. D argues that he needs members of his own race to properly understand his
situation and evaluate his case. D argues that there are some differences b/t
blacks and whites.
ii. Response today: blacks and whites are the same and thus should be
interchangeable or indifferent among the two
iii. Response: If that’s true, then it shouldn’t matter that the jury is all-white, correct?
iv. No! A black D who sits on an all-white jury per the law is in a worse position
than an all-white jury chosen from a mixed pool. In the first case, the state is
sanctioning the the prejudice and announcing that discrimination is ok. Not
allowing blacks on the jury reinforces the perception that blacks are inferior and
stigmatizes them.
D. If D can’t bring this claim, then the real discrimination is against blacks who
can’t serve
i. WV argued that that this was actually a benefit to blacks—they were being
excused from the burden of serving on a jury.
ii. Clearly sketchy as it denies them the right to participate in the legal process that
whites have. It’s also not clear that it’s a burden.
iii. Hypo: blacks aren’t excused automatically but rather get to serve but have the
right to refuse? (This was the law in FL and applied to women.) Might cause
probs in the aggregate if blacks excuse themselves and black D’s have no real shot
at a mixed jury.
E. Hypo: Under Strauder,it would be ok for the State to impose conditions like literacy.
Given that mostblacks were illiterate, this would effectively keep them out anyway,
so we could avoid all the red tape by just having a blanket rule not allowing them to
serve at all. (“Statistical discrimination”)
i. Literacy isn’t a perfect proxy for race.
ii. In the long run, it disincentivizes blacks from becoming literate.
iii. Makes it too easy for the State to hide its discriminatory practices.
iv. “Statistical discrimination” isn’t a valid justification generally. Even if a racial
classification has statistical support, it’s nonetheless illegal b/c it’s a pernicious
use of race
4. Why is discrimination against racial minorities unacceptable?
A. Branding/Stigmatizing: state-sanctioned discrimination announces to the world that
they are inferior or that they are less than human
B. Historical context:race has historically been used for pernicious purposes so when it’s
purportedly used for a “benign” purpose, we should be suspicious. Govt can’t be
trusted to use race as a legit proxy; based on history, govt is more likely to be
prejudicial and stereotypical; process is corrupt.
C. Carolene Products: cts have to be particularly vigilant when it comes to discrete and
insular minorities who lack access to the political process and make changes that way
D. Statistical discrimination: illegal b/c it’s still a pernicious use of race
5. CASE: Plessy v Ferguson
A. Facts: Plessy, who was 1/8 black, was held criminally liable for failure to leave the
white car.
B. Held: “Separate but equal” is ok.
C. Harlan’s Dissent: “our constitution is color blind.” The majority reasoning will
arouse hate and feelings of distrust by sanctioning state laws that deem blacks as
inferior. (Has no problem w/ racism towards the Chinese.)
Con Law: Equal Protection, 2009

D. How can Plessy be reconciled w/ Strauder?

i. The law didn’t discriminate against blacks. The Strauder situation treated blacks
less well than whites.
ii. This is wrong! The Plessy rule continues to stigmatize blacks and we can’t
escape the conclusion that the law is designed to enforce that stigmatism—we
should view it suspiciously.
iii. It is an empirically true sociological judgment that at the time, people thought
(soc judgment) that blacks and whites should be kept separate


1. Strauder says that the 14th is really about blacks but Korematsuextended racial
classifications to the Japanese.
2. CASE: Korematsu v US
A. Facts: Korematsu challenged the exclusion order that placed all those of Japanese
ancestry in internment camps.
B. Held: Although restrictions on a single racial group are immediately suspect and
subject to the “most rigid scrutiny,” pressing public necessity may sometimes justify
the existence of such restrictions.
C. Case gives rise to the strict scrutiny doctrine but application is wrong.
i. Rule: if there’s a suspect classification, analyze the measure by asking if it’s
necessary to promote a compelling state interest.
ii. AT: compelling state interest-protecting West Coast from invasion
iii. AT: necessary-is there a close means-end nexus? Yes, b/c can’t determine which
ones are loyal to the US and which are loyal to Japan, have to intern them all.
D. Conventional view: internment was the product of political hysteria, not genuine
security needs. After Pearl Harbor, there was lots of agitation against the Japanese
but nothing similar occurred towards Germans or Italians. After the fact, it turns out
that the govt evidence presented before the SC had been fabricated.
3. Korematsu Antiprecedent: statutes that are prima facie discriminatory are always unjust
and unconstitutional
4. Strict Scrutiny Doctrine:
A. Suspect classification
B. Compelling interest: interest can’t be trivial; has to be something important
C. Close means-end nexus: measure has to be necessary—there has to be no other way
to achieve the ends but for this measure
5. Critique of the Doctrine:
A. Why’d the Japanese get put on the same side of the line as blacks? If we are worried
about racial classifications being based on animosity or incorrect stereotypes, then
this test is pretty good. You don’t increase those feelings if the compelling interest
and close means-ends nexus is met.
B. But if we’re more worried about stigmatizing, then this test makes less sense. Even if
it’s met, it will stigmatize or ostracize members of the racial group. So you can’t
really enact the measure unless something akin to calamity or emergency will happen.
C. The law has developed in terms of the second option: can’t use these measures unless
to avert a disaster.
D. When faced w/ the measure of interning the Japanese for nat’l security purposes,
judges/exec should look at the time frame, quality of intelligence and be on the
Con Law: Equal Protection, 2009

lookout for opportunism or animosity. W/ Korematsu, a lot of people profited

politically by playing off of anti-Japanese sentiment.


1. After Plessy, the US saw the most brutal period of oppression; South practicing very rigid
2. CASE: Missouri ex rel Gaines
A. Facts: Univ of MO has a great law school. The one good univ created for blacks
lacks such a school. State gave vouchers to blacks to attend out-of-state schools.
B. Held: SC struck this down, stating that this practice denied blacks equal protection since they
couldn’t attend the in-state institution. Furthermore, there was no guarantee that other states
could or would provide such institutions for black students. Can’t export blacks to other

C. Why bother to challenge this? B/c even if NAACP lost, they would get something out of the
situation at MO’s expense—MO would either fit the bill for out of state education or else
provide something in-state for blacks.

3. CASE: Sweatt v Painter

A. Facts: Univ of TX set up a separate black law school instead of allowing blacks to
attend the established and prestigious UT Law School
B. SC: can’t have a separate law school for blacks b/c doesn’t provide equal
opportunities including “qualities which are incapable of objective measure but which
make for greatness in a law school.”
4. CASE: McLaurin v Oklahoma State Regents
A. Came down the same day as Sweatt. P was admitted to a previously all-white school for
graduate studies, but they made him sit in an anteroom in the classroom, eat at diff times, and
sit at a special table in the library.

B. Restrictions are unconstitutional b/c they impaired P’s ability to learn and to study.

5. States wanting to maintain segregation have now run out of options:

A. Can’t segregate blacks within the state university-McLaurin
B. Can’t set up a separate school for blacks-Sweatt
C. Can’t send blacks to out of state schools-Gaines


1. CASE: Brown v Topeka Board of Education-moral clarity but lack of doctrinal

A. Facts: P’s challenged the segregation of public elementary schools under the EPC of
the 14th.
B. Held: In the field of public education, the doctrine of “separate but equal” has no
place. Separate educational facilities are inherently unequal under the 14th.
2. CASE: Bolling v Sharpe
A. Facts: P’s challenged the segregation of public schools in DC, which is under the
purview of Congress.
Con Law: Equal Protection, 2009

B. Held: Discrimination violates the due process clause of the 5th. Can’t segregate in
3. Lawfulness of Brown?
A. Brown I remanded to get answers to the question of the 14th’s purpose and intent;
found that that the holding is not supported by textualism/originalism.
B. Text: Amendment speaks in general terms and doesn’t address school segregation
C. Originalism: You could say that the 14th, which was enacted in an era where public
schooling didn’t really exist, left open the issue that subsequent generations would
conclude that schools should not be segregated.
D. Levels of Generality: could say that the broad purpose of the 14th was to create
equality; there’s gaps but today we can fill in what that means
E. Changed Understanding:framers may have contemplated segregated schools but
we’ve learned over time, that “separate but equal” can’t really be achieved. As a
factual matter, segregation is wrong and can’t be equal.
F. Social science data:to say that blacks learning separately is detrimental. (studies had
major methodological flaws.)
G. C/L or evolution: we’ve seen through McLaurin, Sweatt and Gaines that “separate but
equal” can’t be sustained; since there no other measures left to uphold Plessy, Brown
is a natural conclusion
4. How to square Brown w/ original understanding:
A. After announcing the “separate but equal” standard, subsequent cases like McLaurin
made it difficult for States to do things to satisfy that std.
B. If the SC announces a principle and that principle can’t be implemented in practice,
then to strike down the principle doesn’t really change much.
C. SC can say: every time lawful segregation has been attempted, it’s been struck down,
so in practice it can’t be done. We know b/c we’ve tried hard. So rather than
continuing the fiction of ‘separate but equal,’ why not just admit it can’t be
D. Prob w/ this: text kind of drops out but it is consistent w/ the evolutionary c/l
approach to law
5. CASE: Brown II (1955)
A. Issue of remedy: don’t have to deseg immediately but must do so “with all deliberate
B. SC left the fight of compliance to lower cts; didn’t take another school deseg case for
10 years. But during that time, levels of integration were very low, in large b/c school
boards flat out refused or came up w/ evasive tactics.
6. 1956-substantial integration began to occur due to the passage of the Civil Rights Act of
1964. So maybe Brown was unnecessary b/c the Act ended desegregation, or perhaps
Congress acted only after getting the green light from the SC
7. CASE: Cooper v Aaron (1958)
A. School board in Little Rock, AK came up plan to desegregate. At last minute,
governor intercedes and asks national guard to prevent the black kids from entering.
Local ct orders school board plan to go ahead. Mob prevents black kids from
B. Prez Eisenhower ordered US Army to escort the kids into the school; also federalized
the guard so they’d be under his purview.
C. Action committed the executive finally; up til then they were lukewarm.
Con Law: Equal Protection, 2009

D. SC says: potential for fights to break out is not a reason to disobey the local ct order.
8. CASE: Griffin v Prince Edward County School Board (1964)
A. School board closed down the schools altogether to avoid desegregation. White kids
went to private school but black kids had no schools to turn to.
B. SC said can’t do this, though whyis unclear. There’s no constitutional right to public
schools per se and SC didn’t say that Brownapplied to private schools. But SC has
implied some right to public schooling.
9. CASE: Green v County School Board (1968)
A. School system adopted a “freedom of choice” whereby parents could change the
school that their kids went to by changing their registration. Prior to the plan, there
was a black school and white school per local law. After plan goes into effect, no
whites changed but a few blacks opted to change schools.
B. SC said no you can’t do that, that is inconsistent w/ Brown. Board has an obligation
to get rid of segregation and that it’s not the parents’ duty, but rather the Board’s duty
to see that change.
C. Rule: the reality on the ground is what counts, not just what the law “says.”
10. CASE: Swann v Charlotte-Mecklenburg Board of Education (1971)
A. Board said go to the school nearest to you, and that resulted in de facto segregation
b/c there was residential de facto segregation (earlier, residential segregation
happened b/c of local law). Rule was challenged w/ reference to Green. P’s argued
that busing students w/in the dist to diff schools to achieve desegregation.
B. SC grudgingly agreed w/ the busing plan.
C. If the school choice plan still leads to segregated schools b/c of residential
segregation, then busing is a constitutional requirement to desegregation.
D. Tone of opinion was that SC was getting fed up and nearing the end to Brown.
11. CASE: Milliken v Bradley (1974)
A. P’s proved that in effect, Detroit segregated schools but did so covertly. The practical
reality was that desegregation had caused white flight to the suburbs, thus the only
way to create mixed urban schools was to bus white kids into the city.
B. SC said no go, while the city engaged in covert tactics, the remedy could not cross
district lines—can’t bus kids across districts to achieve better racial balance when the
original district hadn’t segregated their schools.
C. End of the Brown progeny.
12. Post-Milliken, in districts like Detroit, schools pushed for more federal funding to better
minority schools. Initially SC looked upon this favorably but eventually closed the door
on the issue—SC has never said that there’s a constitutional right to receive fed funds to
remedy segregation; now if minority schools want more funding, have to get it from the
state, not USFG.
13. Major attacks on Brown
A. Practically ineffective, mostly symbolic
i. In the wake of Brown, not much happened until Congress and executive got
ii. Empirically true in terms of levels of desegregation
iii. Cts had hard time enacting widespread compliance b/c decisions only effective for
parties to the case
iv. Might have offered focal point for defiance
B. Country already moving towards end of Jim Crow South
i. Segregation would’ve been abolished by legislation eventually
Con Law: Equal Protection, 2009

ii. Perhaps Brown galvanized opposition, maybe even hindered trend

iii. Who is this criticism aimed at?
a. Maybe SC should have been more sensitive to institutional limitations of
courts and not done anything so dramatic (Prof doesn’t buy)
b. Maybe NAACP should’ve pursued diff strategy—legislation of litigation
C. SC should’ve validated and NAACP should’ve insisted on real equality
i. Maybe should have pushed for more funding, more schools and more teachers
a. In areas w/ de facto segregation, Brown didn’t change things
b. Brown provided excuse to avoid the real issue of getting legitimate equality;
segregation was the cause of inequality so getting rid of segregation got rid of
inequality but didn’t reinstate equality
c. It’s the MLK v Malcom X debate—more money could’ve been used to fund
black institutions; they were thriving but as soon as desegregation took over,
black institutions died out b/c elite blacks integrated w/ whites
D. Despite all this, Brown retains its iconic status.

THE MEANS-END NEXUS (based on the handout)

When, if ever, can a state adopt a measure that discriminates against a racial minority, ie
explicitly refers to a minority and treats the minority less favorably?

1. “Statistical discrimination” – ie Strauder, Korematsu – individuals are discriminated

against based on stereotypes held against the group that they associate with; the
stereotypes are based on the group’s “average” behavior thus individuals are treated
unequally because their groups’ conduct differs on average. Is not used as an argument—
efficient law enforcement not a legit reason to use race-based classification.
2. Formal answer: very difficult. To satisfy strict scrutiny, there must be a close means-
ends fit; the measure taken must be virtually the only option left and the state’s interest
must be very important, probably something akin to national security concerns that can’t
be dealt with in any other way
3. Actual answer: almost never. Might want something like a national emergency or in
perhaps in case of Johnson v CA, evidence of deaths due to racial violence in the prison
—something extreme
A. CASE: Palmore v Sidoti
i. Facts: White mom and dad divorce but mom gets custody of child. Then mom
marries a black man and now father is challenging the custody order, arguing that
putting the child with a mixed-race couple will cause damage and social
stigmatization. (Given the hostility and provocation this might cause, it’s a
plausible argument for the time period.)
ii. Held: SC says that while protecting the rights of the minor child is a duty of the
highest order and there is a risk that a white child living with a mixed race couple
will be subject to pressures, the reality of private biases and possible injury are
not enough to award custody to the dad.
iii. Takeaway:
a. SC doesn’t explicitly deny the risks but strikes down the lower ct w/o
hesitation, as if this was an easy case. At the time, there was big presumption
in favor of mothers so b/c race got brought in, this case really is all about race.

Con Law: Equal Protection, 2009

b. Even if the child is made to be a foot-soldier in the fight against private

prejudices, ct is going to look for a closer means-end nexus to justify more
extreme circumstances; this is not it.
c. You don’t tend to see a lot of “statistical discrimination” arguments even if it
tends to be true. The idea of “efficient law enforcement” isn’t considered a
reason to use race.
d. In practice, race-based rules apply even more rigidly than the std suggests.
B. CASE: Johnson v California-analytically hard to know what to do w/ this case
i. Facts: CA prisons have an unwritten rule that when new inmates arrive, they are
placed in same-race cells for first 60 days before being moved. CA argues that
this police is race-neutral—it neither benefits nor burdens any race but it does
allow prison officials to better manage operations and avoid race-based gang
violence in the prison.
ii. Held: SC rejects. Using strict scrutiny, the police is not narrowly tailored even
though prison security is a compelling govt interest. Case is remanded to allow
CA to show that its policy is narrowly tailored.
iii. Reasoning:
a. CA was relying on Turner v Safly which allowed prisons to deny some
constitutional rights to inmates; but SC said for racial classifications, strict
scrutiny still applies like it does to all racial classifications.
b. Did SC get it right? This case is about segregation but it’s not about hurting a
disadvantaged minority. This isn’t like Brown, here separate really is equal.
c. Majority is worried that prison officials will breed racial hostility.
d. Concurrence is worried that majority’s language on strict scrutiny will be used
to strike down affirmative action.
e. CA might have been more persuasive had this been an actual written policy
with factual findings to back it up, ie prison deaths occurred due to racial gang
iv. Takeaway: even w/ the Turner doctrine and good arguments, it’s not enough to get
past, in practice, the virtually absolute bar to using race.
C. CASE: Loving v VA
i. Facts: Lovings challenged a VA law which made it unlawful for any white to
marry a nonwhite. (But it’s ok for nonwhites to marry other nonwhites, regardless
of their race)
ii. Held: The VA law violates the EPC and DPC of the 14th. The purported “equal
application” of a statute containing racial classifications fails the strict scrutiny
test—there is no compelling interest here.
iii. Reasoning:
a. Purpose: preventing the “mongrelization” of the white race is not a
compelling state interest—this was clearly an attempt to preserve white
b. Narrowly tailored: need not even reach this point but the statute only prevents
whites from marrying nonwhites, it does not prohibit nonwhites from
marrying nonwhites.
iv. Some back history:
a. Naim v Naim(1955): white husband sued under VA law to have his marriage to
a Chinese woman annulled on the basis of a law which prohibited interracial

Con Law: Equal Protection, 2009

marriage. SC punted on deciding the issue under strict scrutiny and instead
b. At the time, the decision was seen as SC avoidance but considering how
inflammatory Brown was, there’s good reason for the SC to take incremental
steps and avoid inciting even more backlash.
c. Parallel situation today might be gay marriage.
D. CASE: Martinez-Fuerte: exception: racial profiling by border patrol is ok (no one
questions use of race in description of single suspects—so search is narrowed to class
of suspects fitting the racial description.)
4. Why are racial classifications impermissible?
A. US v Carolene Products-Footnote 4: “discrete and insular” minorities may need more
B. “Discrete and insular”- an easily identifiable group who can’t form coalitions or no
one will form coalitions w/ them, thus no access to political system
C. B/c of defects in the political system, some minorities don’t get a fair share of access
to the political process, so when they are disadvantaged, cts have to especially
watchful and suspicious
D. We may think that normally, courts shouldn’t get involved and we should rely on the
democratic process, but for some groups, the democratic process is systematically
defective or malfunctions so the court isn’t stepping in to promote or vindicate
specific values, but rather, only when the system isn’t working.
i. Ie First Amendment freedoms and political dissidents: cts may have to step in b/c
the politically unpopular are entrenched and have little to no access to the political
ii. Redistricting lines to reflect true distribution of population (back in the day, state
govts disproportionately represented farmers in state legislatures.)
5. What counts as a “racial classification?” No clear line of lines but national origin

Does segregation w/ purportedly equal treatment, constitute discrimination against a

1. Plessy: Yes it’s possible.
2. Brown: Maybe in theory, not in practice.
3. Loving: Law not really equal—whites can’t marry nonwhites but nonwhites can
interracially marry nonwhites w/o running afoul of the law; law is really about promoting
white supremacy not separation of the races
4. Johnson: comes very close to being justifiable separate-but-equal but CA may have won
had their policy been written, factually supported and they could point to other situations
in other state prisons
5. Some asides:
A. Brownhas been criticized for its legal value, though not for its moral value. Laws
prohibiting interracial marriage are about prohibiting voluntary associations while
desegregation was about encouraging associations when they didn’t want to. The ban
on interracial marriages is a more interpersonal issue that goes beyond looking at
black society.
B. Loving has been argued to stand for a kind of right to marriage; it’s seen as a
beginning for certain rights to intimacy cases.
C. Would it make sense to apply the Loving analysis to same-sex marriages?
Con Law: Equal Protection, 2009


When should a classification that is not explicitly based on race be treated like an explicit
racial classification? Only when there’s discriminatory intent, per Washington v Davis.

1. W v D Rule: Discriminatory impx on a minority are not enough to get strict scrutiny; if a
law has a racial purpose or discriminatory intent, then it can be analyzed under strict
scrutiny and gets treated as the explicit racial classification cases.
A. A statute could be passed for neutral reasons but administered in a discriminatory
fashion unintended by the statute’s drafters.
B. A legislature might enact statutes that give lower-level govt agents tremendous
discretion w/the understanding that the discretion will be administered in a
discriminatory manner precisely b/c proving the purpose behind the individual
implementation of a policy would be relatively difficult.
2. Washington v Davis
A. Facts: Respondent-unsuccessful black applicants for positions on the police force,
challenged the validity of the admissions test (testing verbal ability, vocab and
reading comp) arguing that it unconstitutionally discriminated against blacks.
Contended that1) blacks systematically scored lower and 2) the test had not been
validated to establish its reliability for measuring subsequent job performance.
B. Held: While the test may have disproportionate impx but there’s a rational reason for
the test and other proof suggests that the police force isn’t acting discriminatorily.
C. Reasoning:
i. This was an attempt to use litigation to enact social change—P’s argued that
whether or not the racial classification is explicit, if the laws stigmatize, it should
be unconstitutional. But SC’s holding foreclosed on that kind of litigation. The
political climate and courts as an institution had changed and were no longer
receptive to the pure stigmatizing argument.
ii. Rule: Disproportionate impx not enough to trigger strict scrutiny
a. Remember in Strauder, the SC there said that the jury need not reflect the
racial composition of the community.
b. Mere discriminatory impx did not deny any particular Af-Am equal
protection. They couldn’t argue discrimination any more than a white
applicant who also failed.
c. Policy: a rule that killed a statute only b/c of disproportionate impx would
raise serious q’s about a whole host of things such as tax, welfare, public
service, regulatory and licensing statutes that may burden the poor and
minorities than to more affluent whites.
iii. Rule: The only laws that get equivalent treatment as explicit racial classifications
are laws that have a racial purpose or are passed w/ discriminatory intent.
iv. Rule:An invidious discriminatory purpose can be inferred from the totality of the
relevant facts, including by evidence of disproportionate impx. If the law is
neutral on its face and is serving ends otherwise proper for the govt to pursue, it is
valid under the EPC even if it has disproportionate impx.
3. Washington Analysis:
Con Law: Equal Protection, 2009

A. The case had to come out this way—if the racial classification can’t be explicit, it
can’t be done implicitly as well w/ the same FX as explicit classifications
B. The analysis tells you how to understand cases like Green v County School Board and
Griffin v Prince Edward County—makes explicit what was implicit in those cases:
discriminatory intent is necessary and sufficient to make out a claim for equal
4. Some responses to W v D:
A. This was part of the NAACP’s decision to either pursue litigation to equalize
opportunities or to create black institutions—the test scores of blacks here was due
probably to the decades of inferior schooling or perhaps other failures to act by the
B. Some presumption that absent proof of racial animus, the status quo of distributions is
natural, and therefore just.
5. Improperly Motivated Classifications
A. Yick Wo v Hopkins-discriminatory administration
i. Facts: Local ordinance made it unlawful to operate a laundry service out of a
wooden building (as opposed to stone/brick) without a permit. Petitioner was
convicted of running a laundry service without a permit. He alleged that he and
200+ Chinese nationals had petitioned for the permit but were denied whereas all
the non-Chinese applicants were approved.
ii. Held: This is unconstitutional.
iii. Reasoning:
a. SC willing to look beyond the face of the statute to what’s really happening in
application of the law.
b. Whatever the intent was behind the laws, it’s clearly being applied unequally
so as to deny the Chinese equal protection of the laws.
B. Gomillion v Lightfoot-discriminatory enactment
i. Facts: An AL statute altered the shape of the city of Tuskeegee into an “uncouth
28-sided figure” with the effect of removing from the city all but 4-5 of the city’s
400 black voters while not removing a single white voter.
ii. Held: If these allegations were proved, the statute infringed on the rights of blacks
to vote in violation of the 15th.
C. Hunter v Underwood-discriminatory enactment
i. Facts: A provision of the AL constitution disenfranchised all persons convicted of
crimes of moral turpitude.
ii. Held: Provision was invalidated b/c it was largely motivated by the desire to
disenfranchise blacks by choosing disenfranchising misdemeanors that the
drafters thought were particularly prone to be violations committed by blacks.
D. Hernandez
i. Facts: Lawyer challenged Spanish-speaking jurors. A Batson challenge was
brought arguing that this constituted discrimination against Hispanics.
ii. Held: This was not discriminatory. There’s a difference between speaking
Spanish and being Hispanic.
6. Special Case: Batson v KY
A. Facts: Typically, prosecutors exercising peremptory challenges to remove jurors could
do so for any reason as long as that reason is related to his view concerning the
outcome of the trial.

Con Law: Equal Protection, 2009

B. Held: The EPC forbids the prosecutor from challenging potential jurors solely on
account of their race or on the assumption that black jurors as a group will be unable
to impartially consider the State’s case against a black.
C. There’s anecdotal evidence to suggest that lawyers unconsciously or consciously use
race but Batson challenges are extremely difficult to prove.
D. Why is race treated as a special situation in peremptory challenges?
i. It could be that race is being used to accomplish Strauder effects but on an
individual basis. The question nonetheless is whether this is a product of hostility
or are you trying to pick jurors that are going to help your client?
ii. Best answer: we prefer it to be race blind: either you don’t take race into account
at all or it’s treated like any other factor
a. Even w/ valid statistics, we don’t use race but we accept that intuitively, we
know it’s being used
b. We could get rid of peremptory challenges altogether and require a showing of
c. This ultimately begs the question of whether Aff Action is nondiscrimination
at all? Once we say you can’t discriminate period, where does this lead to?
7. The problems w/ trying to determine whether a “discriminatory purpose” exists:
A. Batson challenges are very hard to bring precisely for the reason that it’s extremely
difficult to know when a prosecutor has used race as the reason to bump a juror.
B. Similarly, it’s very hard to know what the legislature was thinking when it passed the
i. Most often, laws are passed w/ mixed motives.
ii. If legislatures know that they merely have to hide the racial purpose, it encourages
them to come up with alternate, perhaps phony justifications via debates and
speeches to hide the true racial animus—makes it even more difficult for a court
to determine what the sole or even major motivation was.
iii. Hunter Redux:at its inception, the statute’s mixed motives clearly included the
desire to disfranchise blacks. But there was no evidence that the current
legislature had this intent or even that the classification had a disproportionate
impact on blacks.
8. What is a “discriminatory purpose?”
A. The Washington barrier to getting to strict scrutiny by showing discrim purpose is
very high nonetheless.
B. Feeney Rule on Discriminatory Purpose:govt officials have an illegit purpose only
when they act w/ the deliberate aim of harming the affected group. This means that
the following might be permissible:
i. Govt officials may not act b/c of a desire to a harm a group but rather, b/c they
associate membership in a particular group with the evil they wish to control.
a. Example: if govt thinks that blacks are more likely to be unsafe drivers than
other races, and that more blacks are high school dropouts, then voting for a
law that requires teenage drivers to be in school means that the govt is acting
b/c of an interest in auto safety and not b/c of an adverse effect on an
identifiable group.
ii. Govt may pass rules to address something they care about but govt may be
indifferent to some of the disadvantages caused by the law.
a. Thus in Feeney, the legislature acted “in spite of” the disads to women, not
“b/c of” the harms to women.
Con Law: Equal Protection, 2009

iii. Prof thinks that this is somewhat wrong b/c:

a. Seems to suggest that there needs to be an element of malice—“because of”
b. The requirement of malice is a mistake! It’s quite possible that people made
the sociological judgment that segregation was legitimately good for the races
and that Jim Crow segregation was not just about hurting minorities.
iv. Prof: better way to think about it: if we had a veil of ignorance and didn’t know
the races of the participants or we could switch the racial roles, would the law still
have come out the same way? Is there real impartiality?
C. Personnel Administrator of MA v Feeney
i. Facts: MA law said that veterans had to be considered ahead of nonvets for civil
service positions. This had the effect of giving males an overwhelming
ii. Held: SC upheld the preference against an equal protection attack.
iii. Feeney Rule:“discriminatory purpose”-more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker selected or
reaffirmed a particular course of action at least in part because of, not merely in
spite of, its adverse effects on an identifiable group.
iv. Nothing in the record indicates that the preference for vets was originally devised
or re-enacted b/c it was accomplish some collateral goal of keeping women in a
stereotypic or defined place in the state civil service.
D. Arlington Heights v Metropolitan Housing Development Corp
i. Facts: MHDC wanted to rezone an area of the city for low-income and racially
diverse apts. The new structures would not fit w/ the existing character of the
area. City, after holding public meetings, denied the rezoning petition. MHDC
sued for racial discrimination.
ii. Held: Plaintiffs failed to carry their burden of proving that the denial was
motivated by a discriminatory purpose. There was no factual support as
historically, AH was zoned for single fam homes and that zoning reflected a desire
to keep up property values.
iii. Reasoning:
a. Rule:proof of racially discriminatory intent or purpose is required to show a
violation of the EPC. Davisdoes not require that the P prove the challenged
action rested solely on racially discriminatory purposes. Rarely can it be said
that legislatures act based on a sole consideration. But the discriminatory
purpose must be a motivating factor.
b. Look at:
1) Disproportionate impx or clear patterns can be evidence of this.
2) Historical background, ie the sequence of events leading up to the
decision, departures from the normal procedures or substantive departures
3) Legislative or admin history, ie meeting mins, reports etc.
E. Rice v Cayetano
i. Facts: HI law made it illegal for anyone not of Hawaiian descent to vote for the
trustees of a particular trust set up for the descendents of HI defined as those who
were on the island in 1778. Law was challenged on the grounds that it imposed
racial restrictions on the right to vote.
ii. Held: The restriction amounted to racial discrimination and was struck down.
iii. Reasoning:
Con Law: Equal Protection, 2009

a. Even though a class defined by ancestry does not include all members of the
race does not mean that it’s race-neutral. Here there is an express racial
purpose and effect.
b. The provision excludes all full-blooded Polynesians currently residing in HI
who are not descended from a 1778 resident of HI. Conversely, the provision
includes anyone who was there in 1778 and who may have been part Asian,
European or African as a matter of race. Thus the classification here is both
too inclusive and not inclusive enough to fall strictly along racial lines.
c. Prof: not sure how this is “racial” as the rule is based on some commonality
based on date but if, for example, everyone on the island was European in
1778, that would fly under the law as well.
9. Special Case: Palmer v Thompson-racial animus but no disparate impx
A. City council closed a municipal swimming pool following court-ordered
B. Held: The closing was not a violation of the EPC.
C. Reasoning:
i. Washington v Davis should’ve overruled this explicitly but didn’t—instead they
distinguished this by saying that here, there was no disparate treatment b/c both
blacks and whites were equally penalized.
ii. Prof: this is a phone distinction and just leads to more tail-chasing.
iii. Rule: This case is still technically good law and might even stand for the
proposition that a law that was racially motivated but lacks the disparate impx is
still constitutional.
10. Discriminatory intent after Washington
A. When there’s a limited set of facts but lots of repetitive judgments, then there’s more
data points to consider intent b/c law is only focusing on a some things.
B. Zoning variances and employment cases for example tend to look at the same things.
C. A clean process that results in the same outcome as a racially-motivated process is
nonetheless ok.
D. This has the effect of making it difficult for P’s b/c of increased hurdles to meeting
their burden of proof.
11. Title VIImakes it illegal to use race discrimination in employment. Additionally, you
can’t do it pretextually a la Gomillion/Yick Wo. SC has also interpreted this to mean that
an employer can’t pass laws to keep out minorities.
A. Griggs v Duke Power
i. Company had a diploma requirement and black P’s argued that this excluded
blacks. Company argued that they had this requirement in place even when they
could voluntarily discriminate against blacks so it wasn’t a pretext to keep blacks
ii. SC: didn’t accept this and instead said that the company must show proof of biz
iii. Rule: If an employer has a rule (that’s not explicit) that effectively discriminates
against minorities, he can’t do that unless he can show a business necessity (leads
to statistical proof requirement on how to justify rules).
B. Washington v Davis: for constitutional claims, the plaintiffs have to show
discriminatory intent and the Griggs Rule doesn’t apply. Why not apply the Griggs
rule here?

Con Law: Equal Protection, 2009

i. If a showing of disproportionate impx were enough, the cts would be

micromanaging everything and the burden would shift to the govt to justify each
ii. Cts wouldn’t want to impose a rule on policymakers that ex ante, they can only
pass laws that don’t have disparate impx
12. Non-race specific restructuring of the political process
A. When do laws that change the political process by which antidiscrimination law is
enforced themselves violate the EPC?
B. The cases (are kind of outliers)
i. Hunter v Erickson: City enacts a fair housing ordinance making it unlawful to
discriminate in housing txns on the basis of race. But some citizens who objected
to the ordinance used the established referendum procedure to enact a new law
that said that ordinances that regulate real estate on the basis of race/color/religion
must first be approved by a majority of the voting electorate. This had the effect
of suspending the original ordinance until a majority of the voters ok’ed it. SC
held that this violated the EPC b/c although the law is neutral on its face, it places
a special burden on racial minorities by erecting a barrier to antidiscrimination
ii. Washington v Seattle School Dist:SC struck down a state initiative whereby the
board prohibited students from attending schools nearest to their residence. But
there were exceptions which permitted assignments based on various nonracial
reasons as well as racial ones if a court found that they were constitutionally
required. SC held that this initiative makes it difficult to enact racially beneficial
legislation and also shifts the authority to answer the problem from the primary
decisionmaker (the legislature) to another decisonmaking body in such a way so
as to burden minority interests.
iii. Crawford v Board of Education: SC upheld an amendment to the constitutional
of CA prohibiting state courts from ordering mandatory student assignment or
transportation unless a fed ct would do so to remedy a violation of federal EPC.
C. All 3 cases are outliers and don’t have much generative significance. They all have to
do w/ race but none use race explicitly. All 3 also involve referendums.
D. What’s really going on? Smell test!
i. Rule: A measure is unconstitutional if it restructures the political process in such
a way so that it makes it more difficult for people to pass certain kinds of laws
after the referendum passes
ii. Rule:Can’t restructure w/ respect to a “racial issue.” But no one knows what a
“racial issue” is.
13. Odd Case: McCleskey v Klemp-law passed despite disparate impx
A. Facts: D was convicted of murdering a white victim and sentenced to death. D
argued that the death penalty system in GA was unconstitutional b/c it was racially
biased. In support of his claim, he offered the Baldus study, a statistical study based
on several thousand murder cases that compared the races of the D’s with the victims.
The study concluded that defendants charged w/ killing white victims were 4.3 times
more likely to be sentenced to death than defendants who killed black victims.
B. Held: SC rejected this claim.
C. Reasoning:
i. Per Feeney, for D to win, he’d have to show that the GA legislature passed the DP
not merely in spite of a racially discriminatory effect but because ofa racially
Con Law: Equal Protection, 2009

discriminatory effect. And there was no evidence that GA passed the statute to
further a racially discriminatory purpose.
ii. Study had lots of methodological flaws but SC unwilling to use statistical
evidence as conclusive evidence though for the purposes of the case, SC takes the
study as valid.
D. This is an odd case b/c while it was decided, it too doesn’t have much generative
significance. It was the culmination of an anti-DP campaign that happened to link
race to the death penalty.
i. We know that GA’s decision to use the DP is affected by the race of the victim but
no one can show which cases this happens in.
ii. So any defendant who comes along can’t prove that in his case, the victim’s race
lead to a DP sentence.
iii. The problem is bigger: discretion is central to the crim justice system and we
know that discretion is exercised but there needs to be proof of whose discretion
was abused.
iv. If you know there’s abuse but no D could prove it specifically, then what’s the
answer? Abolish the DP—the point of the campaign.
E. Takeaway: cts cannot micromanage all of this.
F. Takeaway: McCleksey implicates the 14th(that Af-ams should get equal protection as
whites in terms of crim/tort law) but ct rules against D. B/c crime is interracial, if the
race of the victim matters, than black victims will increase if black perps on black
victims also don’t get the DP.
14. Concluding thoughts:
A. What was going on was an attack against the institution of the Jim Crow south and
that institution was successfully defeated. Once that battle was one, cts kind of got
out of the picture except for some smaller things here and there.
B. What else was this besides an attack on Jim Crow?
i. Forcing statistical discrimination underground: can’t engage in racial profiling no
matter how good your stats are; cultural norm is so strong thus these cases never
even get litigated.
ii. Using race in peremptory challenges is an example where it’s probably being
done but difficult to prove or enforce, Batson challenges
iii. Very few cases after 1970’s involving explicit discrimination against minorities.
C. Possible future issue: what do you do w/ characteristics that are associated w/ race but
are not obviously definitive of race:
i. Hypo: suppose you had a Batson challenge b/c an Af-Am juror was stricken.
Lawyer, when asked, says that the juror was an urban type, gangsta type that he
didn’t want. Lawyer says that he’s willing to take other blacks like Michelle
Obama but not this guy. What do you do w/ this case? There’s a group of Af-
Ams that you don’t want on your jury and these are just euphemisms to avoid
saying black. Or do you say that this isn’t race discrimination even though you
are using some characteristics of race.
ii. Hypo: lawyer says he’s ok w/ Jewish jurors so long as they’re not “too Jewish.”
iii. Employment discrim: involves things like hairstyle
iv. Employment discrim against women: women accused of being too mannish


Con Law: Equal Protection, 2009

Opening Remarks
• Opening definition: a law that explicitly classifies on the basis of race and benefits a
minority group
• Paradigmatic minority group: blacks
• Open q’s:
○ What is a “minority group?”
○ What are “benefits?” Is it always going to be clear that a law benefits?
• Presumption: roughly speaking, the law is usually upheld as long as its rational
• In theory, aff action cases which purport to benefit minorities on the basis of race are
subject to strict scrutiny.
• In practice, aff action cases are treated somewhere intermediate b/t laws that have a
rational basis and laws that discriminate on the basis of race though SC has never
admitted as such
• The 14th only applies to state action but Title 6 of the Civil Rights Act provides that
programs/activities that receive fed funds cannot discriminate on the basis of race; it
effectively incorporates the 14th against private institutions (which includes every major
• Original understanding and AA
A. Decent case to be made that the Reconstruction Congress engaged in race-conscious
legislation, virtually AA. So there’s a strong originalist case that AA is ok.
B. Response:
i. Could say that’s federal law, not state law.
ii. Even though race-conscious legislation was ok back then, that’s b/c they were
dealing w/ the immediate aftermath of slavery. Now it’s a diff situation. (That
argument can be made in response to any originalist argument though.)

The Standard Used in Aff Action Cases

1. Black letter law says that anytime a law uses racial classifications, the standard is strict
scrutiny, regardless of whether the law helps or hurts the minority; but this doesn’t
actually describe what’s going on.
2. 1) Narrowly tailored to fit a 2) compelling state interestdoesn’t apply to AA the same
way that it did for laws that hurt minorities. The standard in AA is far more lenient in
practice, thus suggesting something in between strict scrutiny and rational basis—look
closely at both factors.
3. Parents Involved: you cannot use racial classifications to benefit minorities at all unless
you are remedying a specific past discrimination

The Remedial Use of Aff Action

1. Green/Swann-How will the public schools desegregate? They can’t really act in a color-
blind way but instead have to affirmatively take race into account to bus kids to diff
schools in order to achieve better racial balance. This was the first case where race was
used as part of the remedy—can’t root out anti-minority sentiment unless you take race
into account.
2. UC Davis v Bakke
A. Facts: UC had set aside a quota of seats for minorities in its medical school.

Con Law: Equal Protection, 2009

B. Held: Can’t use quotas but Powell’s concurrence which makes it 5-4 explicitly states
that race could be used as a plus factor in admissions.
C. Takeaway: Race can be used as a “soft factor” in lieu of a quota and we seem to be ok
w/ that b/c it’s somewhat unprincipled and incoherent; as long as race isn’t the turning
factor, it’s ok to take it into account.
D. Powell: Strict scrutiny was appropriate and that the UC-Davis program failed this.
But some uses of race in order to achieve educational diversity would satisfy such
scrutiny. Reserving x number of seats for minorities is unconstitutional but using race
in a more flexible and individualized determination is ok.
3. Grutter v Bollinger-law school
A. Facts: UMich law school’s admissions policy says that they will take race into
account as a “soft factor” in light of the whole application. How much is a taken into
account on a per applicant basis. UMich did not argue that it was trying to remedy a
past wrong but rather, that a diverse class contributes to the learning opportunities of
the school.
B. Held: SC that this is a permissible use of race.
C. Reasoning:
i. UMich is using race in a fuzzy way but it is not trying to obtain a “critical mass”
of minority students.
ii. Rule: The narrow tailoring requirement does not require exhaustion of every
conceivable race-neutral alternative. Ct concedes that the Law School had not
examined every race-neutral alternative available.
iii. Rule: Race-based policies designed to achieve a compelling interest, including
diversity, should be limited in time in order to qualify under the narrow tailoring
4. Gratz v Bollinger-UMich undergrad
A. Facts: UMich undergrad’s admissions policy stated that they awarded points based on
different factors and being a minority got a lot of points.
B. Held: SC struck down the point system b/c it was so high and not individualized
enough that it had the effect of tipping the scales based on race.
5. UMich Puzzle
A. People think that Powell was objecting to the use of fixed numbers or a quota system.
B. But the UMich cases actually line up the other way!
i. If you’re really worried about using race impermissibly, then the law school
system, which makes it a gray, fuzzy factor lets you get to a critical mass of
minorities without being overt.
ii. The law school is more likely to look at each class and ask if they’ve hit on the
right number of minority students—and b/c the effect of being a minority on one’s
application is not a discrete amount, it’s easy to hide what you’re doing and it’s
not at all obvious what weight is being given to the minority status.
iii. Rule:visibility! If you can use race in a way so that your reliance upon it isn’t
visible or concrete, but is part of a holistic examination, then it’s ok.
6. Parents Involved v Seattle Schools
A. Facts: Seattle schools let students choose where they wanted to go but if a particular
school had more applicants than it could handle, the school used a racial tie-breaker
to determine who got in. The school had to reflect the racial proportion of the
community thus if the proportion were off in terms of blacks, then blacks got
preference in admissions.
Con Law: Equal Protection, 2009

B. Held: Roberts’ plurality opinion said that the std of review was strict scrutiny and that
while the Schools argued for the benefits of diversity, the reliance on demographics
cut the other way. Race was used to assign students to diff schools, it wasn’t taken
into account as part of some admissions analysis. And b/c the schools were supposed
to reflect the racial composition of the community, thus the schools were using race
for racial balancing and that is not a compelling state interest.
C. Kennedy’s concurrence:
i. Schools did not use narrowly tailored means to achieve the compelling state
ii. Avoiding racial isolation is a compelling state interest, ie avoiding schools that are
overwhelmingly one race or another
iii. Achieving a diverse student population is a compelling state interest
iv. Not ready to unequivocally rule out race-conscious actions but says that if you are
going to use race, do it in a Gomillion kind of a way, ie redrawing the dist lines

The “compelling interest” prong

1. Rule: govt justification cannot be that it’s remedying “society discrimination;” it has to
be something more than a justification for discrimination at large
A. Croson Rule: a law that purports to remedy general societal discrimination is not a
compelling interest that justifies aff action
i. Richmond v Croson: City of Richmond had a program that favored minority
contractors; the lowest (white) bidder lost out to a minority bidder b/c of the
program. City did not argue that they were remedying their own discrimination
but rather, general discrimination in the contractor industry. SC held that under
strict scrutiny, the City’s program was unconstitutional b/c they failed to articulate
a compelling interestfor the minority set-aside program. To accept the City’s
claim that remedying general discrimination would open the door to all kinds of
competing claims for remedial relief for every disadvantaged group.
B. Rule: Aff action has to be remedying “identified discrimination,” for example,
discrimination by a particular unit of govt
2. Grutter/Gratz Rule: outright racial balancing (Bakke-setting aside a specific number of
seats for a group based on ethnicity/race)is not a compelling interest and is thus patently
unconstitutional. Alternatively, achieving racial diversity is a compelling interest.
3. Is there any coherence to the idea that racial balancing is not ok while racial
diversity is?
A. SC has never fully and explicitly answered this.
B. If you’re really worried about racial interest group politics (that would occur by
giving minorities a share of the pie), and you think it’s a bad thing for society, then
that is why you’d say no to outright racial balancing and that remedying societal
discrimination isn’t good enough. To argue that remedying general discrimination is
good enough would cause every disadvantaged group to lobby for remedial relief.
C. This is in contrast to the permissible AA flavor of problem-solving: AA is acceptable
when it’s being used to remedy a specific past discrimination. AA is not ok as a mere
handout to powerful minority groups—it’s not a racial spoils system.
4. Summary of constitutionally permissible uses of race, ie “compelling interests:”
A. To remedy past, specific discrimination
B. Grutter: diversity in the student body (also suggests that diversity in faculty, police
forces etc might also be valid goals)
Con Law: Equal Protection, 2009

C. Kennedy in Parents Involved: avoiding isolation, ie schools that are overwhelmingly

one race or another
5. How much deferenceshould a court give to a govt entity claiming that there is a
compelling interest? Should the ct demand clearer evidence of the presence of a
compelling interest or should the ct defer to the expertise of the institution?
A. In the UMich cases, the SC was very deferential to both the law school and UMich’s
undergraduate admissions office
B. Kennedy in Parents Involved suggests some degree of deference even though he held
the conduct to be unconstitutional.

The “narrowly tailored” or close means-ends fit prong:

1. If diversity is offered as a compelling interest, then affirmative action has to promote
diversity in the way of religion, disability, economic differences etc. in addition to race,
otherwise it’s just too crude a fit for “diversity.” Why?
A. To avoid the problem of this being an interest group grab by one group
B. You can do it w/ race, it just has to be subtle—ie done surreptitiously
2. No quotas or fixed numerical weights
A. Found unconstitutional: Bakke, Gratz
B. Race must be used as a plus factor and should be discretionary; requires looking at
the individual or holistic consideration
3. Show that you have in good faith considered workable, nonracial or race-neutral
alternatives to achieve the same goals
A. After Parents Involved, “race-neutral” means “without explicit use of race,” but
Kennedy says you can use race implicitly for example, by drawing dist lines
4. The use of aff action has to have a sunset provision (but this requirement seems to have
dropped out by the time of the UMich cases).
5. Theme in all of this: it’s ok to race as long as it’s implicit, not obvious and without
principled standards. Other examples:
A. Physician-assisted suicide: it is illegal technically but done anyway; people are not
taking steps to root it out; we know it goes on.
B. Coerced interrogation/torture by intelligence agency officials: would officially deny
use of torture as a matter of policy but it does happen
C. Jury nullification: power of juries to acquit even though the person is guilty per the
law and facts; idea is that juries can nullify and we think it’s a good part of the system
but lawyer can’t ask for nullification during case.
D. CBA by private firms: w/ CBA, car company could add more safety features, increase
price and save more lives OR less safety features, sell cheaper and accept some
deaths—if you engage in that CBA explicitly, big PR and legal prob.
E. Rule: we allow this but we don’t want people to get too comfortable w/ the idea or
get used to doing it too easily; better that they feel reluctant but engage in it—offers
some kind of check

Strict scrutiny and the federal govt

1. Adarand v Pena: USFG held to have violated the 5th, not the 14th but EPC is in 14th. By
its text, 14thonly applies to the states, no reason to think that it applies to the USFG. But
the 5th’s due process clause was used to reach racial discrimination done by the USFG.
2. Bolling v Sharpe: DC’s companion case to Brown. DC’s segregated schools was held
unconstitutional on the basis of the 5th. This is a problematic case for textualists and
Con Law: Equal Protection, 2009

originalists b/c very hard to get from text/original understanding to the conclusion unless
you allow for a very high level of generality. The case has to be right, but how you get
there might be a problem.

Is affirmative action still constitutionally problematic b/c a racial classification is still a

1. So far, we have 3 theories for why race-based classifications are bad:
A. Stigmatize minorities
B. Are the product of false stereotypes and prejudices and
C. Laws victimize minorities who can’t self-protect using the political process b/c of
lack of political power
2. AT: Stigmatizing
A. B/c they are perceived as needing the extra assistance in order to compete effectively
—but then it’s the purported beneficiaries who should be complaining, not the
B. Strauder-like argument: the minority should be happy b/c they are exempt from some
burden. But that can still stigmatize.
C. So the idea that something can tangibly help a group while intangibly hurt them goes
back to Strauder
3. AT: False stereotypes
A. Argument: when a nonminority sues, he’s saying that the minority has been
stereotyped b/c they’ve been handed a gift since they otherwise couldn’t make it on
their own
B. Subtle iteration of Strauder
4. AT: Discrete and Insular Minorities
A. Argument: minorities need help in order to participate fully in society
B. Subtle iteration of Strauder
5. The problem is not just racial classification, but more broadly, of beating up on
minorities. It’s a mistake to say that racial classifications are problematic, the real
problem is beating up on minorities. Affirmative action doesn’t beat up on minorities.
6. Weber’s theory of ethnic relations: there are dif ways that diff ethnic/religious/national
etc groups can related to each other
A. Vertical: dominant group that has clear power over subordinate group (ie the Jim
Crow South)
B. Horizontal: there are pronounced divisions, maybe even civil war but can’t clearly say
which is the dominant group though they are in conflict w/ each other

Con Law: Equal Protection, 2009


Beach Communication Formulation of RBR-p. 514-“In areas of social and economic policy, a
statutory classification that neither proceeds along suspect lines nor infringes fundamental
constitutional rightsmust be upheld against equal protection challenge if there is any reasonably
conceivable state of facts that could provide rational basis for the classification. . .

B/c we never require a legislature to articulate its reasons for enacting a statute, it is entire
irrelevant for constitutional purposes whether the conceived reason for the challenged distinction
actually motivated the legislature.”

• Is the default std of review—applies to all laws except those that are constitutionally
• Such classifications are presumed to be valid
• A challenger must prove that the classification is NOT related to any conceivable
legitimate state interest
• Hypothetically, any rational state interest will suffice, even if just hypothetical
• Oversimplified version: it’s a free pass, anything goes
Means-End Nexus:
• Means: rationally related
• Ends: to a legitimate state purpose
• Thus the govt doesn’t have to prove the correctness of their policy choice, but rather, just
that it’s related to a rational purpose.
• If there’s an irrational or improper purpose underlying the law, it’s ok that it results in
some inequalities.

1. Strict scrutiny began in the wake of the Civil War; rational basis review was devised
almost as a way to uphold laws instead of as a means to strike them down.
2. RBR is a product of the Lochnerera where cts were constantly evaluating labor and
economic laws. After saying that the courts couldn’t constantly evaluate such laws, RBR
provided a graceful exit from the role of constant monitor.
3. 1930’s: Revival of RBR; came out of the idea that the legislature must be acting
rationally when they are regulating b/c they cannot regulate without due process of law
4. Unlike the race cases, there is no paradigmatic case. Instead, RBR might be a stepping
stone to getting heightened review.
5. At times, it’s been virtually impossible to use RBR and strike something down—seems
like we’re in that era now.


RBR for economic decisions

Con Law: Equal Protection, 2009

1. CASE: NY Transit Authority v Beazer

A. The NYC Transit Authority excluded all methadone users (a drug used to help break the
addiction to opiates) from employment in order to assure job and passenger safety. The
regulation was attacked on equal protection grounds on the basis that it was so over-inclusive
that the relationship b/t methadone and safety was irrational.
B. Over-inclusiveness-the class includes not only the people who have the potential to fall back
into doing drugs, but also the people who are going to rehab successfully by using
C. The SC held that even though there was evidence to suggest that methadone users were free
from heroin use for more than a year, the SC upheld the law under rational basis, stating that
NYC’s “no drugs” policy is supported by the legitimate inference that as long as a treatment
program continues, a degree of uncertainty persists.

2. CASE: Williamson v Lee Optical

A. OK banned opticians from making glasses w/o a prescription from either ophthalmologists or
optometrists, but did allow drugstores to sell ready to wear glasses w/o a prescription.
B. The SC held that the discriminatory ban against opticians did not violate equal protection. As
long as the legislature did not employ suspect classifications, the court will defer to the
legislature’s choice of classification.

C. Rule: The legislature may take “one step at a time” addressing itself to the phase of the prob
that seems most acute to the legislature at that time, and may selectively apply a remedy
while neglecting others.

3. CASE: Railway Express Agency v NY

A. NYC passed a law prohibiting the operation of advertising vehicles, but permitted placing
notices on biz delivery vehicles as long as they were engaged in the usual business of the
owner. P argues that such ads on commercial vehicles such as trains, won’t cause any greater
distraction. P/RR said the law was so grossly under-inclusive as to be irrational.
B. RR argues that it’s underinclusive: All commercial vehicles w/ ads seen on the road
contribute to distraction but surely the total number of businesses who put out ads includes a
lot more than just these commercial vehicles.
C. SC rejects, instead holding that the classification is permissible if NYC sees fit to eliminate
one kind of traffic distraction but doesn’t touch on what seems to be even greater ones in a
diff category. Doesn’t matter b/c there’s no requirement of equal protection saying that all the
evils of the same genus either must all be eradicated or none at all. There was some evidence
that those advertising on their own trucks didn’t pose the same kind of traffic prob
considering their ads.
4. CASE: Minnesota v Clover Leaf Creamery
A. MN banned the sale of milk in plastic containers but allowed milk to be sold in plastic coated
paper containers. The law was supposed to promote resource conservation. Lower court
found that the real goal was to serve the interests of local dairy and pulpwood industries. The
law was attacked as not being rationally related to the goal of conservation b/c the empirical
evidence tended to show that the ban on plastic containers did deplete resources and waste
B. The SC held that it didn’t matter that the empirical evidence perversely served the goal of the
statute. Legislatures don’t have to prove the correctness of their decisions to the court as long
Con Law: Equal Protection, 2009

as the question is at least debatable. Where the ev before the legislature reasonably supported
the classification, P can’t invalidate the law merely by producing evidence that the legislature
was mistaken.
C. Rule: The lack of empirical evidence validating the efficacy of the legislation is not
necessary even if it ends up being just supposition.

“RBR Plus” or RBR for the Crypto-Suspect Class or Souped-Up RBR

1. CASE: USDA v Moreno

A. Federal law denied food stamps to any household containing an individual unrelated to any
other member of the household. P was living with someone unrelated so that her child could
be closer to school. P was denied such food stamps.
B. The SC applied rational basis and struck down the law b/c the classification was clearly
irrelevant to the law’s declared goal to raise the nutrition levels of poor people and to
strengthen the agricultural economy. The court rejected as illegit, the purpose of preventing
communes of hippies from participating in the food stamp program.

C. The real goal was to prevent fraud and thus there is no reason to choose b/t related and
unrelated individuals.

D. Rule: Equal protection must at the least mean that a bare congressional desire to harm a
politically unpopular group cannot constitute a legitimate governmental interest.

E. Caveat: today hippies might not fall into the category of suspect class.
F. Suspect class:intentionally discriminate in a constitutionally invidious (wrongful) manner, ie
race. Impinge on a fundamental right and are subjected to strict scrutiny. Is noted in
Footnote 4 of Carolene Products.

2. CASE: Romer v Evans

A. CO amended their constitution to prohibit all Colorado governments from enacting laws that
protect homosexuals from public or private discrimination. CO argued that the purpose was
to respect its citizens’ freedom of association.
B. Since homosexuality is not a suspect classification, the court applied rational basis and found
that CO’s alleged goals were so far removed from the amendment’s sweeping effects so as to
be pretextual. The Ct found that the laws were designed to make homosexuals unequal to
everyone else.

C. Rule: A total ban on govt action to protect homosexuals against discrimination is an

enormously broad civic disability simply to honor the freedom of association.

D. Rule-rational basis with a bite: this is rational basis with a limited definition of what a legit
governmental purpose is

3. CASE: City of Cleburne v Cleburne Living Center

A. CLC was denied a permit to set up a facility for the mentally retarded. Govt offered 3
justifications: 1) neighborhood fear and hostility 2) the site was located on a 500 year
floodplain and 3) the size of the home and # of occupants.

Con Law: Equal Protection, 2009

B. SC held that the denial of the permit violated equal protection. The first objective was
motivated by irrational prejudice. The second 2 were legitimate but so grossly under-
inclusive as to be irrational b/c other medical facilities were there already.
C. SC says it’s applying rational basis but seems to be employing something a little more
heightened as it says that the legislation was in part motivated by an irrational prejudice
towards the mentally ill.

What’s really going on:

1. Type or review that might really be going on:

A. Hard look review:
i. Similar to admin law—look at the procedure/process and see if the entity thought all the
way through and made w/ deliberation
ii. Don’t want the decision to be the product of inertia etc.
B. Prevent interest group legislation
i. Argument: the legislation is not rationally related to a state interest but rather, is for an
interest group
ii. Not a popular justification to prevent interest group legislation today
C. Crypto-Suspect Class
i. Look at who is getting victimized (Beazer Dissent)
ii. Ask if they are similar enough to our paradigm class (lack political power, not politically
popular etc.) to warrant slightly more heightened scrutiny—RBR Plus
D. Bare desire to harm
i. “mere antipathy”
ii. Romer v Evans
2. Why did the Court take a second look at the transit authority’s plan in Beazer?
A. What’s going on here is similar to racial discrimination but not exactly; but the concerns that
drive the race issues (no political power, not politically popular etc.) may similarly be at work
hereit’s similar enough to race to get involved. So Ct isn’t second-guessing but rather,
protecting a group (methadone addicts) that perhaps can’t self-protect and are subject to
abuse by the majority; so use Souped Up RBR to protect
B. It’s possible that empirically, the lower ct got it wrong and methadone addicts can perform
their job properly.
i. But if employers have every reason and incentive to get the hiring decisions correct and
hire the best people, then why not buy their conclusion that ex-methadone addicts just
aren’t good enough?
ii. It might be that businesses want to preserve their reputation when they make hiring
iii. Then again, as a govt agency, they aren’t subject to the same political and market
pressures that other business entities are.
C. Key: Look at the procedure used to reach the decision by the transit authority! A court can
look at the process and determine whether the transit authority thought this employment
policy all the way through? A court can ask the hard questions and if the process is
thoughtful and reflects deliberated decisionmaking, then it passes RBR! Ct is acting like a
more senior manager and engaging in something like hard look review.
Con Law: Equal Protection, 2009

3. Interest group politics

A. Cases: Lee Optical, Railway Express, Clover Leaf Creamery
B. SC justifies Lee Optical and Railway Express on the grounds that the legislature has the
ability and authority to address problems “one step at a time,” even if that means drawing the
line at an arbitrary starting point when there’s perhaps “greater” problems that ought to be
addressed first. But it seems like the legislature merely passed a law favoring one interest
group over another—that is the nature of politics after all—and absent some defect in the
process or some allegation of impropriety, the decision stands.
C. In Clover Leaf Creamery, this isn’t as obvious an interest group fight because even though
there are clearly interest groups at play, the environmental justification is still pretty good.
4. Should the cts intervene when legislation is the product of interest group efforts?
A. Academic literature says that interest groups are out of control and that courts should get
B. To advance this, a court would have to :
i. Be able to identify what is interest group legislation
ii. Explain why favoring certain groups is bad/not in the public’s interest
C. You could offer proof of the workings of the legislative process and the dynamics to show
that this wasn’t the product of interest group politicsshow proof of dealmaking, public
debates, who supported etc. And you might argue that empirically, ophthalmologists are
better than opticians.
D. But that is too difficult a problem to put on a court:
i. A court might not be able to isolate what an interest group legislation is
ii. Interest group legislation is not necessarily a bad thing (first it’s difficult to id since
everything is the product of someone’s interests but second that Madison’s factions are a
good thing)
iii. Difficulty of an intensive factual inquiry into what is in the “public interest”
iv. Trying to go back and figure out what really happened in the legislature is not sufficiently
respectful of the legislature’s role in govt—the court is not a “super-legislature” that can
go back and check or distort the will of the democratically elected legislature esp since
the legislature is supposed to be politically responsive
E. For RBR to be meaningful, there has to be some limit or definition of a “legitimate state
i. Kelo v New London: in a takings case, court struggled w/ how to define a “legitimate
state interest” in trying to determine the limits of “public use”
ii. Thomas Dissent makes an anti-Washington v Davis argument
5. Summary
A. RBR is almost a free pass on scrutiny as long as it’s not about a suspect class
B. Romer/Cleburne/Moreno: only area w/ any real RBR generative significance—govt acting
out of mere antipathy
C. Principle: generally, mere disapproval isn’t a legit state interest. Somewhat of a tough claim
b/c cases don’t analyze this point clearly enough (see RomerDissent). We could say:
i. Position 1: cases are wrong; no reason to exclude these kinds of laws b/c we can re-
characterize them as aesthetic or moral disapproval.
a. This is unacceptable:

Con Law: Equal Protection, 2009

b. Book says that this is a prob of tautology but unless there’s some limit on “legit state
interest,” RBR can’t be used to strike down anything and everything goes
c. Cases don’t come out this way consistently
ii. Position 2: Bare animosity, disapproval not enough and cases aren’t strong enough on this
point but rather, should go further
a. Ok so then what is acceptable?
b. Why limit govt in that way, ie make a moral judgment?
iii. Middle ground:
a. Moral disapproval is ok as long as it’s really worthy of moral disapprobation
b. But that would force cts into the position of second-guessing the legislature
c. Disapproval of a crypto-suspect class is not ok but if RBR applies, treat the mentally
ill as a suspect class (akin to a minority) even though SC won’t say explicitly that
they are a suspect class
d. Cts sense perhaps that cases like Romer are outliers and the trend seems to be the
other way, ie the gay rights movement, so ct takes the approach of erring on the side
of the trend
e. Maybe cts offering something b/t their own personal judgment and sense of society;
but still have to explain why bare animosity isn’t good enough

Con Law: Equal Protection, 2009


• Test: substantially related to an important state interest

• VMI adds: “exceedingly persuasive justification” but not clear what that adds

The Road to Craig

Part I: The Road to Reed
1. Bradwell v IL (1872)
A. Facts: Myra applied for the IL bar but IL Bar denied her application saying that
women couldn’t be lawyers since the “strife” of the bar would destroy femininity.
Myra sued arguing that denial was a denial of her 14th Amendment right to a privilege
or immunity.
B. Held: SC said that the Privileges and Immunities Clause did not include the right to
practice a profession thus it was properly regulated by the state. The natural place for
a woman is her domestic role in the home.
2. Hoyt v FL (1961)
A. Facts: FL law made jury duty an opt in thing for women—women had to actively
register. Murder case D argued that she was prejudiced by an all-male jury and that
the FL actively sought to prevent women from serving on juries.
B. Held: SC upheld the explicit sex-based classification under RBR. The statute was
based on a reasonable classification and was thus constitutional. B/c women were
critical to home and family life, the opt-in was consistent w/ relieving most of jury
duty while keeping the option open to those who really wanted it.
3. Reed v Reed (1971)
A. Facts: ID law said that if no one was named as administrator of a will, and there are
two people closely related to the decedent, give the position to the male, not the
B. Held: Under purported RBR, the law’s dissimilar treatment violates the EPC b/c it’s
an arbitrary preference based on criteria unrelated to the objective of the statute.
C. Reasoning
i. This is the first equal protection case to prohibit discrimination based on sex and
ushered in a new era of intense judicial interest in gender classifications.
ii. A classification must be reasonable, not arbitrary.
iii. Under RBR, any plausible explanation is virtually good enough—b/c at the time,
men tended to be more skillful in market-based positions and women tended not
to be involved in financial affairs, at the time of the creation of the law, it
probably made some sense to give the role to the male b/c he was more likely to
be better qualified.
iv. Problem: this incentivizes women to remain unskilled in financial and business
v. Problem: this stigmatizes women as only being skillful in domestic matters.
D. Here, SC says it’s using RBR, but in Frontiero, SC says that here they were really
using something more stringent since majority implicitly rejected the rational
explanation given for the statutory scheme.
4. Frontiero v Richardson (1973)
Con Law: Equal Protection, 2009

A. Facts: Fed law said that male members of the armed forces could automatically claim
his spouse as a dependent and get greater housing and medical allowances. But
women in the armed forces could not get the same benefits for herself and her
husband unless she could first demonstrate that her husband depended on her for
more than of his support.
B. Held: SC said that this violated the equal protection component of the 5th
Amendment’s due process clause.
C. Brennan Reasoning:
i. Gender should be subject to strict scrutiny. The history of gender discrimination
looks like the history of racial discrimination.
ii. Sex, like race, is an immutable characteristic and classifications made on the basis
of sex are done so for administrative convenience.
iii. Title VII of the 1964 Civil Rights Act which prohibited employment
discrimination based on gender indicates congressional agreement that sex
discrimination is invidious.
iv. Under strict scrutiny, the law here fails b/c the differential treatment was only b/c
of administrative convenience and that’s not a compelling enough interest.
Administrative convenience is the kind of arbitrary classification system that
Reed prohibits.
D. Powell, concurring in the judgment
i. But expressly disassociated himself w/ Brennan’s contention that gender
classification is suspect—in light of Reed, it’s unnecessary to reach that issue.
ii. Given that the ERA, passed by Congress and awaiting ratification by the States,
was pending, if it passed, it would have solved the issue anyway.

Part II: From Reed to Craig: Evolution and Doctrinal Confusion

1. Due Process and Conclusive Presumptions
A. Stanley v IL (1972): IL law automatically made children of unwed fathers wards of
the state on the death of their mothers whereas unwed mothers could only be deprived
of their kids upon a showing of unfitness. SC struck down the law, holding that this
scheme deprived fathers of due process of law by creating a “conclusive
presumption” about an unwed father’s unfitness.
B. Cleveland Board of Education v LaFleur (1974): Local regulation required pregnant
school teachers to take maternity leave well before her due date. SC struck down the
law, holding that the due process clause did not permit the “conclusive presumption”
that pregnant women were medically unfit to teach.
i. Powell concurrence: original goal was to keep pregnant women out of school
children’s sight. Board also posits lots of after-the-fact rationalizations which are
illegit. Would invalidate under EPC and RBR.
ii. Case had nothing to do w/ showing disparate treatment among males and females.
C. Takeaway:in both cases, SC said have to make determinations on a case by case
basis and didn’t mention gender. (This is a somewhat tenuous position b/c laws
routinely make broad classifications.)
D. Both are good law though.
2. The 6th Amendment and Juries
A. Taylor v LA (1975): the exclusion of women from jury service deprived a defendant
of “his 6thAmendment” right to a fair and impartial jury. The SC distinguished Hoyt
by saying that Hoyt did not involve a defendant’s 6thAmendment right to a jury drawn
Con Law: Equal Protection, 2009

from a fair cross section of the community. The right to a proper jury cannot be
overcome on merely rational grounds.
3. Equal Protection
A. Weinberger v Weisenfeld (1975): SC used equal protection analysis to strike down a
section of the SSA enabling a widowed mother, but not a widowed father, to benefit
on the earnings of the deceased spouse. The law assumed that a male worker’s
earnings are vital to the support of their family so when he dies, his wife
automatically gets the social security benefits. But women’s earnings are
insignificant contributions thus if she dies, her husband has to affirmatively show
proof that he is entitled to social security benefits.
i. Citing Frontiero: classifications based on archaic and overbroad generalizations
are unconstitutional
ii. What does “archaic and overbroad” mean? It probably does not mean something
that’s false—at the time of passing, the law was probably grounded in true
judgments about society. But SC didn’t say that the condition must be false either
—it means something else.
4. Unsuccessful Challenges to Gender Classification
A. Kahn v Shevin (1974): SC upheld a FL law giving a property tax exemption to
widows but not for widowers on the grounds that the job market is particular
inhospitable to women, whether b/c of the male-dominated culture or overt
discrimination, women can’t seek anything but the lowest paid jobs.
B. Schlesinger v Ballard(1975): SC upheld a law granting women in the Navy a longer
period to achieve mandatory promotion than men. SC reasoned that this was not
based on Frontiero/Reed archaic and overbroad generalizations but rather, since
women were precluded from combat and sea duty, they would not generally have
compiled the record of service comparable to male lieutenants.
C. Takeaway: this is a kind of aff action for women; since law is designed to help
women overcome hurdles, it’s ok
5. What constitutes a gender-based distinction?
A. Geduldig v Aiello (1974): SC rejected a challenge to CA’s disability insurance
program which excluded pregnancy-related disabilities from coverage. The program
doesn’t exclude anyone from benefit eligibility b/c of gender, but instead, merely
removes one physical condition—pregnancy—from the list of compensable
i. Justice Stewart in a footnote: this is not a case of sex discrimination. The law
divides the classes into pregnant and nonpregnant. Nonpregnant includes both
male and female recipients thus there’s no gender discrimination.
ii. Justice Brennan in dissent: the state is giving less favorable treatment to a gender-
linked disability peculiar to women. There’s a double standard in compensation:
men can be fully compensated for all disabilities suffered, including ones
particular to men like prostatectomies whereas women aren’t fully compensated.
6. The legacy of Reed
A. Taylor, Stanley, LaFleur: SC overturned gender classifications w/o substantial
reliance on equal protection analysis
B. Reed, Stanton, Weisenfeld: SC purported to utilize only low-level RBR to invalidate
the classifications
C. Frontiero: SC had the chance to afford express heightened scrutiny for gender
classifications, but 5 justices declined to do so
Con Law: Equal Protection, 2009

D. In Craig v Boren, SC for the first time applied heightened review of gender

Craig and the Aftermath

The Cases:
1. Craig v Boren (1976)
A. Facts: OK permitted females at 18 to buy 3.2% beer but forbid males from doing so until age
18. OK’s objective was to enhance traffic safety. OK offered proof that 18-20 yr old males
were arrested more frequently for drunk driving than females in the same age group.
B. Held: SC strikes down the law and creates intermediate scrutiny. SC agrees that protection of
public health and safety on the road are important state objectives but that the sex differences
for the purchase of 3.2% alcohol does not serve that objective. Ct was impressed by the fact
that first, the statute served the objective of sale, not consumption, and that second, only 2%
of males in the 18-20 age cohort were arrested.
2. Michael M v Sonoma County (1981)
A. Facts: CA made it a crime for a man to have sex with a woman under the age of 18 but did
not criminalize the woman’s participation. A 17 yr old male who had sex with a 17 yr old
female appealed, arguing that the statute violated equal protection.
B. Held: SC upheld the law stating that under an intermediate scrutiny paradigm, the sex
distinction was substantially related to CA’s objective of reducing pregnancies among
women. The Ct found that the statute criminalizing men only would serve to deter males
from having sex with women, esp since there were little consequences for men if she got
pregnant. On the other hand, the risk of getting pregnant was enough of an inherent
deterrence to women from having sex that there wasn’t a need to criminalize women for
having sex before 18. The fact that only women can biologically bear children makes
pregnancy a unique attribute to women, thereby justifying the sex distinction.
C. What’s really going on: statutory rape laws are gap fillers to help w/ cases of hard-to-prove
coercion where women are unlikely to come forward. (There’s probably empirical evidence
to show this) This still begs the question of why not have a gender-neutral law?
3. MS Univ for Women v Hogan (1982)
A. Joe Hogan wanted to attend the nursing program at this school, which was traditionally a
field reserved for women. He could’ve gone elsewhere but his sole reason for wanting to
attend this school was that it was close to his home.
B. Held: SC struck down the women-only entry requirement. Men were allowed toaudit classes
so it’s not like they were never present in the classroom. Having a women-only nursing
school would perpetuate the stereotype that nursing is solely a woman’s profession. There
was no important governmental interest to protect.


1. What is sex discrimination?

A. Conclusive presumptions w/o any relation to purported state objective: Stanley, LaFleur

Con Law: Equal Protection, 2009

B. Statutes that really discriminate by stereotyping based on gender: Craig, Hogan, Weisenfeld,
Stanley, Frontiero, Reed
C. Pregnancy-based distinctions? Not discrimination, Geduldig
2. Statistical Validation and Craig: dissent is analytically sound according to Prof
A. Objection 1: men challenging a gender based statute which treats them less favorably than
women may invoke a stringent std of judicial review than pertains to most other types of
i. Why is there is especially high scrutiny when men are the ones claiming discrimination?
B. Objection 2: Majority’s enunciation of this standard: gender classifications must be
substantially related to an important govt interest
i. Equal protection clause contains no such language.
3. AT: why have heightened review if this hurts the majority, ie men?
A. This law might help women but the realworry is about continuing to stigmatize a group
anyway—by saying that women are the more responsible and grown-up ones so they can
handle their beer responsibly while boys will be boys. [Note: this is a Strauder argument—
this is a “benefit” to women so why should they complain?]
B. Why is this stigma bad? While the law tangentially favors women, it’s part of the
maternal/nurturing/stay-at-home packaging of women and the law reinforces these traditional
views of women
i. This is a bit of a fringe argument in the affirmative action cases—that aff action
reinforces the stigma that minorities need the extra help
ii. But in the gender cases, it’s at the fore
C. Hogan reinforces this view—by not allowing men into the profession of nursing, the
perception that women only make qualified nurses b/c of their nature, nurturing and maternal
qualities continues; also reinforces the perception that men can’t be nurses b/c they lack those
D. Do all gender classifications perpetuate this impression? How can we tell the
difference? Do we want courts to regulate this?
i. Could say that b/c this is discrimination against people, it hurts both men and women,
thus gender discrimination is wrong period
a. In the race cases, the prob was beating up on minorities
b. If we’re looking at religion or national origin, it’s harder to find the subordinate
c. Judges: if the problem is drawing lines based on gender, it’s not a prob b/c it hurts a
subordinate group, but rather, it’s a prob b/c it reinforces sex roles so both men and
women are hurt.
d. Hogan/Kanowitz, p. 663: sex discrimination against males is also widespread; see
preference for mothers in child custody cases, compulsory military service etc.
4. How do we argue that despite statistical generalizations that seem accurate, that’s not
A. Normative construction of EPC: J.E.B. v AL ex rel T.B.: Gender-based peremptory
challenges are unconstitutional.
i. Justice Blackmun: even if a measure of truth can be found in some of the gender
stereotypes (as typified by statistical generalizations), that’s not enough to justify the
stereotype-based law. The EPC requires that state actors look beyond the surface before
Con Law: Equal Protection, 2009

making judgments about people that are likely to stigmatize as well as to perpetuate
historical patterns of discrimination.
ii. Justice O’Connor: It’s true that gender and the resulting life experiences will be relevant
to a juror’s view about a case, but this decision is a statement to eliminate the potential
discriminatory use of peremptory challenges, though we both gain and lose w/ this
iii. Justice Kennedy: once seated, a juror should not use racial or gender prejudices to
influence his decision; to do so would be to violate his oath b/c he sits as an individual
and not as a representative of one race or gender.
B. An artifact or real vs artificial
i. Are they due to actual differences b/t men and women or are they social constructs that
result in differences b/t men and women?
ii. Geduldig: pregnancy is a real difference so it’s ok to legislate based on that real diff
iii. Hogan: men can’t be nurses but only women cansocial construct
iv. Weisenfeld: males have to show dependency b/c prevailing social view is that they
normally are the breadwinners and are not dependent social construct
v. Stanley/LaFleur: “conclusive presumptions” social construct
vi. Michael M: statutory rape law is gap filling for hard-to-prove coercion where women are
unlikely to come forward (though why not gender-neutral isn’t answered)real diff
vii. Statutory rape laws are a tricky case b/c it’s hard to know why women are at risk for
coercion—is it an inherent diff or is it due to society’s construct of gender roles?
viii.Applying IS to gender classifications based on “real” differences  look to whether
the premises are true or are the product of social constructs or serve to perpetuate archaic
notions and stereotypes?
C. Not benign
i. Hurts both women and men
ii. Hogan: roles can become entrenched, even “benign” characteristics can hurt both ways
iii. Kanowitz, p. 663: males have suffered widespread discrimination, ie preference for
mothers in child custody cases (Stanley) or compulsory military service
D. Overbroad, traditional, archaic
i. Main point! Many of these laws are based on outdated, old-fashioned ways of thinking.
And while they may have even been true at the time of creation of the law, that is not a
reason to keep them going.
ii. Maintaining these roles is really about maintaining a tradition of subordination and
domination—it’s not just that they’ve been around for a long time, but it’s a bad tradition
being perpetuated.
iii. Market theory: such laws that subordinate women, esp in terms of commerce or finance,
are a way to ensure male market domination
iv. Hogan, Reed, Weisenfeld
E. Self-perpetuating
i. These “differences” only exist b/c they’ve been perpetuated by laws like that at issue in
Hogan, Reed, Weisenfeld, Craig, Stanley
ii. Laws that entrench these “traditional roles” further disincentivize people from changing
ie men going into nursing, women managing financial and business matters, men being
fit parents etc.
Con Law: Equal Protection, 2009

5. The law needs to be modernized. See VMI-it’s not ok to maintain a silly arrangement just b/c it’s
always been that way.

VMI and its Aftermath

US v Virginia (VMI)-1996

1. Facts: VMI, a state school, had historically admitted only men. VA was sued and the US argued
that its men-only admissions policy violated the EPC. VA argued that it wants to provide a
diverse menu of educational styles including single-sex schools (there are women-only schools),
and that its model of education—“Adversity”—was best suited for an all-male environment.
A. Dist Ct made findings of fact, including that admitting women would alter some aspects of
the school’s method of learning, but ruled in favor of VA.
B. App Ct reversed and remanded to find a suitable remedy.
C. Dist Ct: tells VA to find a remedy.
D. VA creates VWIL.
2. Is VWIL a suitable alternative or does VMI’s admissions policy violate the EPC?
3. Held: VMI’s all-male policy violates the equal protection clause.


1. Some keys about Ginsburg’s opinion in VMI

A. This is a very aggressive use of anti-precedents.
B. Suggests that all generalizations are bad b/c there will be some exceptions but then opinion
backs away from fully settling the tension b/t such laws that are generally good and not good.
C. Opinion does not go so far as to say that can’t discriminate on the basis of gender unless
something really terrible will happen
2. Best defense of Ct’s conclusion in VMI?
A. SC does not say that there is no place for single-sex education but rather, leaves that open for
constitutional acceptance.
B. This case harkens back to Bradwell v IL—are women really unable to fit in with VMI’s style
or is this some kind of male or female protectionism?
C. Women have successfully integrated into other military academies. There’s no evidence that
either gender is receiving an inferior education as a result of a co-educational military
curriculum. And in fact, we used to think that women couldn’t be in the military at all but
they’ve successfully integrated into the military.
D. Don’t want state to perpetuate the idea that women can’t integrate or compete at such a
E. In fact, the adversative method is itself a product of gender distinctions, though the court
doesn’t go so far as to say that.
F. Renquist Concurrence: Protecting the ‘adversative’ method is not a legit state interest—it’s
not the only way to produce citizen-soldiers
3. What do you do when there’s a real world inequality b/t men and women?
A. Remedying a real-world inequality is probably an important state interest
Con Law: Equal Protection, 2009

B. The problem is that the remedy itself may promote the stereotype as well—get both FX:
remedial (good) and stereotyping (bad)
C. Example: in the social security cases, there’s only a finite amount of money. If men are
generally financially ok but their wife dies, then they may get money that they don’t actually
need (in terms of the objective of the statute) but if they don’t get it, then that announces a
stereotype about the inferiority of the women’s income contribution
D. Answer: You have to prove to the court the conviction that this really is being done to
address a problem—the response has to be a sincere effort to remedy a problem. And the
justification for the remedy can’t be made after the fact (VMI) or in anticipation of litigation
E. Answer: The problem with striking down the law in Goldfarb is that if the law really
reflected society, then the victory is at best symbolic b/c the practical effects are still
problematic (ie now you have men getting benefits they don’t need or both men/women have
costly burdens of proof before getting benefits.)
4. When does the law reinforce traditional roles?
A. Look at the era of when the law was passed (Prof says this is guilt by association)
i. Bradwell era?
ii. VMI’s founding era reasons are no longer valid when you consider that other military
schools have successfully integrated women
B. Is there a post hoc justification made for litigation and used to hide the original reason?
C. Was the original reason bad but there’s proof that the legislature has re-evaluated and
sincerely come to the conclusion to keep the classifications but now for diff but updated
D. Are the reasons for the sex distinctions the product of contemporary political processes? We
don’t want old laws in effect simply because no one’s gotten around to changing them.
E. Is there empirical evidence of the substantial relationship to an important state interest?
F. Carolene Products-Does the court need to intervene to protect a group who lacks political
power to self-protect?
5. Michael M
A. Why not have a gender-neutral law?
B. State will argue that we don’t want to criminalize all relationships, such as relationships b/t
minor boys and their adult girlfriends.
C. Response: this interest sort of only works if we think that the majority of coerced sexual
relationships occur w/ minor girls
6. Not all laws which allocate econ rights on the basis of gender will be invalidated
A. Califano v Webster (1977):
i. Facts: SS formula used to compute earnings at retirement used a more favorable formula
for women (based on using longer period of earning time) to calculate earnings.
ii. Held: SC persuaded that the legislature really was trying to remedy a prob (less earning
time for women = less retirement benefits unless legislature intervened) of past
iii. Law’s sunset provision also persuaded the court that this was merely a temporary remedy.
B. Califano v Goldfarb (1977):
i. Facts: SS rule required males, but not female spouses of deceased wage earners to prove
actual dependency in order to receive survivor’s benefits.

Con Law: Equal Protection, 2009

ii. Held: SC struck this down—this is not an attempt by the legislature to remedy past
discrimination against women but probably just an attempt to make it harder for men to
earn or automatically get more money since they were likely to already be earning
iii. Although the men are being discriminated against, there’s hidden discrimination against
women b/c while a woman is working, she’s not guaranteed that her earnings will
continue to inure to her husband on her death whereas working males have that guarantee
for their wives.
iv. Wengler says this is discrimination against both.
7. Special case: Nguyen v INS (2001):
A. Facts: W/ children of nonmarried couples born overseas where only one parent is an
American, American mothers can automatically get American citizenship for their parents.
But American fathers have to take a paternity test first.
B. Held: The law is constitutional even though it treats men and women differently.
C. Majority: B/c the mom is guaranteed to be present at birth, she has the opportunity to have a
relationship that makes a child w/ a US mother more likely to be tied to the US. Majority
doesn’t have a really strong response to the fact that DNA testing now makes it easy to tell
whether the American father really is the father.
D. Stevens: joins the majority even though he’s usually tougher on sex-based classifications, esp
ones tied to stereotypes. Stevens is the only WWII vet on the court—he may think there’s a
real prob w/ US servicemen going abroad and fathering kids who then come back and claim
that they should be US citizens. He wants to make sure that we only let people in who have a
real claim to US citizen-fathers.
E. Prof: this case is a bit of an outlier.

Concluding thoughts on sex discrimination

1. Remedying sex discrimination or even “separate but equal” sometimes has the twofold effect of
1) providing a remedy but 2) promoting a stereotype.
2. Having a “separate but equal” model in lieu of sex classifications is tricky b/c then you’d have to
be equal across the board and couldn’t compensate for the differences that affect women uniquely
or differentially as compared to men.
3. The rejection of the ERA may be an indication of people’s views that sex discrimination is not
unconstitutional. Then again, the law looks no different than what it would have been had the
ERA passed.
4. Market theory: the old notion was that women don’t sell their labor but instead work for diff
(domestic) kinds of rewards. But if you look at what the court is doing, you can see that they are
trying to make women more suitable participants in the market. The cases say that we won’t let
the govt carve out a special nonmarket niche for women.
5. Tension in “separate but equal” laws
A. Two-fold effects
B. A la Goldfarb, striking down laws that actually reflect society might be symbolic victories
that nonetheless create practical problems
6. Takeaway:
A. Supposed inherent differences are not a reason to discriminate on the basis of gender.
Con Law: Equal Protection, 2009

B. Physical differences can be a reason to discriminate.

C. Sex discrimination cannot be used to denigrate members of either sex or to impose artificial
constraints on an individual’s opportunity.
D. Sex discrimination can be used to compensate women for particular economic disabilities.
E. Such classifications can’t be used to create or perpetuate the legal, social and economic
inferiority of women.
F. The justification must be genuine and not hypothesized or a post hoc rationalization in
response to litigation. (This is in contrast to rational basis review which accepts any
conceivable justification for the law)
G. Remedial laws that have sunset provisions seem more palatable. (Webster)


1. Mostly a statutory subject
2. Constitutional piece is limited in importance.
A. It’s diff from sex and race b/c aliens are strictly a legal classification
B. Cases that said aliens = suspect class are old and it’s an odd thing to say b/c the
classification only exists b/c we enact laws to that effect. If you don’t want to
discriminate against aliens, just abolish that category.
C. Thus we obviously want this classification for some other purpose. The law is not
founded on the premise that there should be no distinction.
D. There’s a diff b/t how the state and the USFG can discriminate
3. Yes Discriminate:
A. States can discriminate against aliens in a limited way: can exclude aliens from
positions that are central to the political community, ie voting rights
B. USFG: has a lot more power to restrict, ie immigration and welfare policy
4. No Discrimination
A. But for other positions, the test seems to be something like strict scrutiny—close
means/ends fit to a compelling state interest. Example: if you can’t get a fishing
license b/c you are an alien, that is subject to “strict scrutiny.”
B. What is the dividing line? Hard to say have to look at individual cases. Includes state
police officers, teachers, voters, probation officers but you cannot keep them from
being lawyers or public notaries
C. What’s really going on? It’s a compromise b/t on the one hand the distinction b/t
aliens and the prerogatives of citizenship ie voting and on the other hand, aliens are a
prime target for discrimination and have lots of characteristics of racial minorities.
5. Why does the USFG have greater power and we’re less worried about this? Diff in
state and fed interests!
A. W/ the US, the justification for discrimination is that the US has a legit interest in
encouraging aliens to become US citizens.
B. States don’t b/c they aren’t in charge of immigration policy. If states got into it and
said they were discriminating for citizenship encouragement purposes, then you’d
fear pretext.
C. Federalist Papers: a large republic is more likely to produce more faction and less
tyranny of a powerful faction
Con Law: Equal Protection, 2009

Wealth Classifications
1. 1969 world, when CJ Warren left the court. By 1969, Brownlooked successful. State
sponsored segregation was dying and had touched sex discrimination.
2. At that point, what’s the next frontier? Poverty.
3. There’s language in the late 1060’s case where SC was pushing on the poverty-race
4. Then after Nixon’s appointments, ct shut the door on the poverty-race connection.
5. Shapiro v Thompson-p. 702- SC struck down laws that required people to live in a state
for a certain period of time in order to get welfare.
6. But by 1970’s, Andrews v Williams, ct upheld a law that limited amount of welfare you
could get for a large fam.
7. San Antonio School v Rodriguez-any movement along the poverty dimension was killed.
P challenged the local property tax funding for local schools. (had been challenged
successfully in state cts). P lost.
A. Suppose a city banned all households w/ household income of less than 100k—so no
poor people in the town. How do we analyze this.
i. Start w/ RBR: is it irrational? It’s not irrational in the Williamson v Lee Optical
sense—poor people require more services, richer people can contribute more in
tax revenues.
ii. What about the possibility that we should apply RBR+, a la Romer, Cleburne etc.
This was kind of a class of people that was the target of prejudice of animosity
and prejudice. That’s a pretty good argument. (Souped up rational basis)
iii. If you can’t win under either one of those, then you try to argue that these guys
are a kind of suspect class and should be treated like discrimination against racial
a. Is it a suspect class? Discrete and insular? Not 100% clear but not a major
political player.
b. Subject to stereotypes and prejudice? Yeah probably.
c. Do laws that discriminate against poor people stigmatize them? Yes a law like
this might announce their inferiority.
d. Edwards, p. 701-ct did strike down such a law but ct said it was
unconstitutional on commerce clause grounds but there was majority language
hinting at what we’d now consider suspect class classification. Jackson’s
concurrence directly analogized this to suspect classification.
iv. You don’t see laws like this.
B. What about a law that zones for single fam houses and is sold in 1 acre plots?
i. Argument: this is the 100k law so if that’s unconstitutional, so is this one.
ii. Use Washington v Davis: the effect of the law is the same but the effects aren’t
the key—have to show that the intent behind the single fam zoning is to
C. If we didn’t have W v D and the disproportionate impx matters, then in a market
economy, that principle will affect the market and any pricing mechanism (b/c they
all disproportionately affect poor people.)

Con Law: Equal Protection, 2009


• Fundamental rights-Palko-are implicit in the concept of ordered liberty so rooted in the

traditions and conscience of our people as to be ranked fundamental or so important that
neither liberty nor justice would exist if they were sacrificed
• Recognized areas: The Ct has, as a practical matter, recognized the fundamental rights in
only a few areas: marriage, family, child-bearing and rearing, and death
○ Fundamental rights strict scrutiny
○ Nonfundamental rights rational basis

1. Equal Protection vs Due Process
A. Equal protection clause analysis asks why there’s a line drawn b/t two groups of people,
regardless of the right being allocated?
B. Due process clause analysis asks why is there a rights depravation regardless of who is being
2. Implied rights: the natural law idea that all people are “endowed by their Creator” w/ certain
inalienable rights is rooted in Anglo-American law. But in a country with a written Constitution
and a demand for a Bill of Rights, the natural law philosophy for protecting other unwritten rights
has to find some constitutional basis.
A. Calder v Bull
i. Chase: there are principles not explicit in the Constitution but that nevertheless restrain
the legislature, ie natural law and social K law. Cts can enforce these rights and declare
laws unconstitutional based on these principles.
ii. Iredall: the principles that we use to strike down laws have to be written down in the
Constitution. “Natural law” is speculative and if start straying from the text, it’s just
going to become a contest b/t the judiciary’s opinion and the legislature’s opinion.
B. Who’s winning? It’s hard to say. No one’s saying what Chase is saying and that sometimes
the text just doesn’t matter. So if you have to find some constitutional hook, in that sense
Iredall wins.
3. What’s the best textual hook for IFR’s?
A. Slaughterhouse Cases (1873): Butchers asserted that their 14thA P+I were violated by a LA
law granting a slaughtering monopoly to Crescent Slaughterhouses. SC upheld the law as a
valid exercise of the police power of the state. (This is a Union-installed state govt.)
i. Dissent: The right to earn a living as you wish is a privilege that the state cannot take
away under the 14th.
B. According to the Slaughterhouse Cases, the butchers’ K/labor rights were not violated b/c:
i. 14th’s PIC: this only protects specific rights of national, not state citizenship, ie the right
to travel, vote in national elections, enter public lands etc.
ii. 14th’s EPC: only refers to blacks and racial discrimination
iii. 14th’s DPC: only applies to procedural due process (which seems to say that you can do
whatever as long as there’s enough process)

Con Law: Equal Protection, 2009

iv. Federalism: Slaughterhouse’s narrow interpretation of the PIC was intended to promote
federalism and protect against federal encroachment onto state purview, which heretofore
covered most of the civil rights. If the PIC was given an expansive meaning, then
Congress, who enforces the 14th, could supplant or censor states.
C. It’s not obvious that the 14thwas not meant to give Congress more power. But Slaughterhouse
ruled that out.
D. If P+I is out, <substantive> DPC seems like a good fit.

The Lochner Era and FoK as an IFR

1. From the turn of the century to the mid-1930’s, the courts became a kind of super-
legislature and freely substituted their judgments for the legislature’s, often rejecting
states’ attempts at regulating business in the name of freedom of K.
2. The implied right to FoK was seen as being a pro-business, conservative hostile position
to the states’ authority. The liberal position was to stick to the constitutional text.
3. Lochner v NY (1905)
A. Is FoK an implied fundamental right? Yes.
B. Held: In another super-legislature act, SC invalidated a NY law that capped the total labor
hours of bakers b/c it was an arbitrary and unnecessary interference w/ the FoK of one’s own
labor—thereby violating the substantive DPC.
C. Holmes Dissent: the majority is really imposing its own views on econ policy; we’re
supposed to be allowed to disagree and the Court should not void a law simply b/c it
disagrees with it. The Court should only invalidate a law when a rational fair man would
admit that the statute proposed would “infringe fundamental principles as they have been
understood by the traditions of our people and our law.”
D. Harlan Dissent: the NY law is a valid safety measure and as long as the statue arguably was a
health measure, the Court should sustain the law. Very deferential to legislature.
E. Is the hour limit a good law?
i. No: it interferes w/ someone’s ability to work long hours.
ii. No: this is the product of union-esque forces or is an interest group deal.
iii. Yes: protects against worker exploitation
iv. Yes: protects against the overall workers’ interests
4. Possible textual hooks for Lochner’s FoK:
A. If FoK is derived from the spirit of the 14th A, what’s the proper outcome?
i. The 14thAmendment secures the right for all people to determine their own labor/wage
rates—something the slaves didn’t have control of. Thus this law violates the 14th.
ii. The 14thwas meant to do away with slave labor and if we don’t enact labor laws, this is
will result in worker exploitation, the new breed of slavery. Thus, this law upholds the
14th and protects against slavery.
B. Art 1, Sec 10: states can’t impair K obligationsSC interpreted this to mean that states can’t
interfere w/ existing K’s (not that states can’t interfere w/ the creation of a K)
C. 5th Amendment Due Process: buying/selling labor is a property right that was taken away w/o
due process (5th only applies to the USFG until after incorporation)
D. PIC: killed by Slaughterhouse
E. 9thAmendment: the enumeration in the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people. (not cited in Lochner)

Con Law: Equal Protection, 2009

5. Is Lochner right?
A. Some text
B. Moral maybe
C. In the anti-slavery spirit (though this cuts both ways)
D. If this is merely interest group legislation, then ok to strike down
6. Is Lochner wrong?
A. If FoK is a right, it’s certainly not an absolute right
B. Lochner didn’t realize just how easily the FoK right could be exploited
7. Key: If we agree that FoK is an implied fundamental right, who gets to regulate or impinge
on that right, the courts or the legislature?

The Repudiation of Lochner

1. Holmes’ dissent prevailed and the SC generally got out of the business of being a super-
legislature and killing regs simply because they disagreed w/ its wisdom. In form, Harlan’s
means-ends review and deference to the legislature provided the vehicle for the Court’s graceful
exit out of economic oversight.
2. Nebbia (1934)
A. Harlan deference
B. SC upheld milk controls set by a Milk Board. The Board promoted public welfare and as
long as the law was not arbitrary or capricious, it was ok.
3. West Coast Hotel (1937)
A. Harlan deference
B. SC upheld a min wage law for women and rejected a substantive due process challenge on
the FoK; reg is ok as long as it’s not arbitrary or capricious
4. Carolene Products (1938)
A. Harlan deference
B. SC upheld a ban on sales of filled milk b/c legislature said it was undernourishing.
C. RBR Rule: legislation which neither intruded on the BoR nor restricted the political process
was to be upheld unless under all reasonably conceivable facts, the law was “of such a
character as to preclude the assumption that it rests on some rational basis.”
D. Rule: econ regs are subject to RBR
5. Williamson v Lee Optical (1955)
A. Holmes and no super-legislature
B. Explicitly kills Lochner: “the day is gone when this court uses the DPC to strike down state
laws, regulatory of business and industrial conditions, because they may be unwise,
improvident or out of harmony with a particular school of thought.”
6. Ferguson v Skrupa (1963)
A. Holmes and no super-legislature
B. SC upheld a law that only allowed lawyers to be debt adjusters. SC barely reviewed the law
before green lighting it.
7. In all these cases, the wisdom of the law could be questioned but it was enough that the issue’s
wisdom was debatable. (Some of these cases really just look like interest group legislation. The
prob of course is whether the court is really in the best position to weed that out or should we
leave it to the legislature?) Thus the doctrine of substantive due process could not be used to
Con Law: Equal Protection, 2009

strike down economic and social regulation that did not impinge on the BoR or restrict the
political process.
8. Real Lochner Problem: the absence of standards to determine which unwritten values, not
explicitly written in the Constitution, are nevertheless entitled to special protection under the 14th
and who (cts or legislature) gets to decide when to override them.
9. Why is FoK not an implied fundamental right?
A. Artificial construct: FoK is not in the Constitution, the SC just made it up. Due process is not
substantive but main procedural and in all the cases where the SC uses FoK, it’s really just
siding with business interests.
B. Court competency: maybe there is something to FoK but to figure out how to regulate it is
just too complicated and should be left to the legislature who will look at empirical data and
hold hearings
C. FoK is not absolute: Lochner made FoK paramount but there’s lots of good reasons to
override FoK; not only did the Court not understand the factual situation driving the law, but
they failed to realize all the other instances were limiting the FoK is a good thing
D. Lochner tried to protect against interest group legislation: but Holmes says that this is
impossible; New Deal politics marked the triumph of interest group legislation
10. Prof: maybe Lochneroverreached and thus created backlash? It would have been ok to review
statutes like Ferguson and Lee Optical (marginal, indefensible laws that looked like one group
was just trying to drive out another) but the Court overreached by going after min wage and max
hour laws.

1. Most of the enumerated constitutional rights are from the BoR, which by their own terms, only
apply to the USFG.
2. During the demise of Lochner and the revival of civil rights in Brown, SC took the DPC from the
14th and one right at a time, incorporated BoR rights as against the states.
3. Incorporation Debate:
A. In Palko, Cardozo suggests that the 14th absorbs only those BoR provisions which are
“implicit in the concept of ordered liberty” and without which a “fair and enlightened system
of justice would be impossible.”
B. Black:
i. The 14th was meant to incorporate the BoR in its entirety when it was passed
ii. Stick to the text.
iii. Don’t over-enforce the BoR or we get to Lochner drama
C. Franfurter
i. Since the BoR protects some insignificant matters (like the right to a jury trial in $20+
controversies) and doesn’t protect other significant rights, the 14th’s DPC is flexible.
ii. Thus as long as a state is fundamentally fair, it meets the 14th.
D. Most BoR rights have been incorporated; the following have not:
i. 5th A indictment by a grand jury—states need not follow
ii. 7th A right to civil jury trial—states need not follow
iii. 2nd A: currently being litigated

Con Law: Equal Protection, 2009

E. Much of the fight over what to incorporate took place during the segregation era of the 40’s
and 50’s w/ remnants left over in the 60’s. As a result, the South’s criminal justice system
was being used as a tool of racial oppression. The SC was looking to reform the system.
i. Black: said if you want to uproot the system, you have point to text in the Constitution.
That is far more politically and rhetorically persuasive instead of relying on vague things
like due process, fundamental fairness, and tradition.
ii. Why incorporate:
a. Pragmatic focal point
b. Powerful tool to reform the South
c. Rhetorically useful to say that the South not only violated notions of fundamental
fairness but also the BoR.
4. Modern Law: Selective Incorporation
A. Today, incorporation is settled law and incorporated rights carry all the preceding federal
doctrine when they are applied against the states.
B. Duncan v LA (1968): those portions of the BoR which are “fundamental to the American
scheme of justice” bind the states through the 14th.

Substantive Due Process

1. By 1965, the SC is no longer using “substantive due process” as a way to strike down laws that
regulate unenumerated “economic rights.”
2. But the Court did express a willingness to use the DPC to protect what they considered to be
important unenumerated noneconomic rights.
3. IFR’s derive from 14th’s substantive due process. Due process is also procedural.
4. Critique of substantive DP:
A. DPC doesn’t say “implied fundamental rights”—thus it’s an awkward verbal fit
B. DPC is the fallback position since Slaughterhouse read out any usefulness in PIC
C. Interesting back story, no longer in vogue: in the 19thcentury, there was an idea that certain
kinds of property depravations could only be done by courts, not the legislature. This kind of
thinking lead to Lochner-like cases where you can’t take things (FoK) from people w/o due
process. And due process only means judicial process, not legislative process.
5. Griswold v CT ( 1965) and Penumbras
A. Facts: Members of Planned Parenthood were tried and convicted for giving info and
medical advice about contraception to married couples.
B. Held: SC struck down the statute b/c it impermissibly limited the right of privacy of
married persons. The law violated the due process clause b/c it deprived these
married persons of the liberty protected by this “right to privacy.”
C. Reasoning:
i. Griswold created the modern right to privacy: there is a right to privacy based
in the “penumbras” of several guarantees of the Bill of Rights
ii. The CT statute was problematic b/c:
a. It regulated a personal marital relationship w/o a legit and identifiable reason
b. It gave the govt the right to inquire into these private marital relationships
c. Prosecution under the statute would require one spouse to testify against the
other about intimate details of their private life

Con Law: Equal Protection, 2009

D. Harlan’s concurrence: takes the natural law approach; historical and philosophical
rights could be enforced even against the will of the majority; did not advocate
striking down laws just b/c they offended his personal sense of reasonableness.
Marital privacy is part of the liberty protected by the 14th and is part of the concept of
“basic ordered liberty.”
6. Where do you find the right to privacy <in fam planning decisions>?
A. Text
i. Nothing explicit about a right to privacy or to use birth control
ii. Black/Scalia: the text constrains judges from wandering in the wilderness
B. Penumbras of the 1st, 3rd, 4th, 5th and 9th Amendments—what can we infer from the
structure of the text?
i. These amendments contain peripheral guarantees of privacy
ii. 3rd: people can’t be forced to quarter soldiers
iii. 4th: LEO need warrants before invading your home or your person
iv. 5th: Due process
v. 9th: Unenumerated rights belong to the people
vi. We already infer limiting concepts from the structure of the constitution, ie SoP
and federalism
C. Common law
i. Has always protected bodily integrity, ie the tort of battery
ii. C/l has not protected min wage or max hours, healthcare or education etc.
D. Precedent
i. Skinner
ii. Pierce
iii. Meyer
E. Harlan’s tradition:
i. The right to control one’s family matters has historically been supported
ii. This is a way to screen outlier cases—laws that conflict with the way things have
always been done
a. In Griswold, this was an “uncommonly silly law” given the widespread
availability of contraceptives in the state and the lawfulness of their
possession and sale for some purposes; doubtful that this would have deterred
illicit sexual relations
iii. Critique of Harlan:
a. How do you id traditions? You’ll have to look back and possibly
recharacterize things.
b. What do you mean by “tradition?” Is that the law on the books or in actual
c. If and when can states override tradition?
F. We’ve always recognized the sanctity of family?
i. Is that true?
G. Today: Meyer, Pierce, Griswold, Eisenstadt and Roe
7. Assuming that you’ve found the right, when can the state impinge on that right or
when will the court protect it?
A. Tradition:
i. Protect the way that things have always been done
ii. Have we outgrown tradition and it’s time to get rid of something due to better
understanding? (ie racial discrimination)
Con Law: Equal Protection, 2009

B. Modernization
i. Do we have an old law just hanging around, that is now being selectively
ii. Is there an updated or modern reason to keep an old law around?
C. Common law reasoning

Privacy Rights and Abortion

The Cases
1. Eisenstadt v Baird (1972)
A. Facts: MA statute prohibited distributing contraception to unmarried persons.
B. Held: This separate treatment of unmarried persons violates the equal protection
clause but SC used RBR. There’s no rational reason to treat married and unmarried
persons differently.
C. Brennan Dicta: If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted govt intrusion into matters so
fundamentally affecting a person as to the decision of whether or not to beget a child.
D. What’s really going on?
i. Rule: Eisenstadt extended the Griswold right to procreative decisionmaking to
unmarried (as well as married) couples.
ii. Why doesn’t Eisenstadt pass RBR?
2. Griswold/Eisenstadtmake clear that states cannot prohibit adults from using
contraceptives just b/c the state objects to contraception use. The state can regulate
contraceptives to meet health and safety standards but state can’t use its police power to
limit the right to privacy.
3. Roe v Wade (1973)
A. Facts: TX statute made abortions illegal unless the mother’s lifewas in danger. TX
argued that the goals were to 1) discourage illicit sexual behavior, 2) protect pregnant
women from a hazardous procedure and 3) protect prenatal life on the theory that life
begins at contraception.
B. Held: SC said that under strict scrutiny, the right to privacy is fundamental. A
woman’s right to privacy is broad enough to encompass her decision of whether or
not to terminate a pregnancy. SC also concluded that a fetus is not a “person” w/in
the meaning of the 14th but SC need not decide the q of when life “begins.”
C. Reasoning:
i. The right to privacy includes a woman’s right to choose to terminate her
pregnancy. Since this right is enshrined in the 14th’s protection of liberty, the state
can’t restrict it w/o due process of law.
ii. Normally the legislature can regulate activities as long as the regulation bears
some rational relationship to a legit state interest but if the state seeks to regulate a
“fundamental right” like privacy, then the SC will only uphold the reg if it is
necessary to promote a compelling state interest. (SS) the right to privacy is
fundamental. Thus the state can regulate abortions only if that furthers a
compelling state interest.
a. Possible compelling interests: health/life of the mother and life of the viable
b. Not a compelling interest: nonviable fetus
iii. Trimester framework for when a state’s interest becomes compelling:
Con Law: Equal Protection, 2009

a. First: state has no compelling interest to restrict abortions

b. Second: state has some compelling interest to restrict abortions b/c of
increased risks to the mother’s health (reasonableness of these restrictions are
subject to judicial review and would include a factual assessment of whether
the abortion method used would harm the mother’s health or not).
c. Third: state has a compelling interest in the now viable fetus, thus state can
restrict abortions
d. But at any time, if the mother’s life or health is in danger, the state has to
make an exception and allow the abortion regardless of which trimester
4. Planned Parenthood v Casey (1992)
A. Facts: PA law requires that a woman seeking an abortion give her informed consent
prior to abortion procedure, and she must be given certain info at least 24 hrs before
abortion is performed. Minors must tell their parents and a married woman seeking
an abortion must sign a statement indicating that she notify her husband.
B. Holding: W/o expressly saying Roe is right, the court affirms Roe’s “essential
holding.” A woman has the right to choose to have an abortion before viability and to
obtain it without undue burden from the state.
C. New Test: Ct substitutes the undue burden test in place of the trimester framework.

D. Rule on the Undue Burden Test:

1) Before viability of the fetus, a woman has the right to choose to terminate her pregnancy
and strict scrutiny applies
2) BUT states may impose previability regulations to achieve a compelling state interest. If
those regulations impose an undue burden (a state reg has the purpose/effect of placing a
substantial obstacle in the path) they are always invalid
a. Such burdens are not narrowly tailored to achieve even compelling state goals
b. But after viability, states are free to regulate or even prohibit abortions except
where necessary to save the life of the pregnant woman

3) Application of Undue Burden:

a. Informed consent-not an undue burden unless it affects her right to choose. A

state measure reasonably related to persuade her not to terminate will be upheld;
probably just can’t be coercive

b. 24 hr waiting period-not an undue burden. State is allowed to enact persuasive

measures which favor childbirth, even when those measures don’t further a
health interest. While waiting period limits a physician’s discretion, that isn’t
reason alone to invalidate it

c. Certifying that she told her husband-burden. Married women is not property of
her husband. Gives husband a trouble degree of control.

d. Minor notice to parents-based on reasonable assumption that consultation w/

parents is a good thing. Minors aren’t autonomous. Can be waived in some

E. Blackmun’s Concurrence: abortion is a fundamental right to privacy. But 24 hr waiting

period is unconstitutional.
Con Law: Equal Protection, 2009

F. Stevens’ Concurrence: interest in protecting potential life is not grounded in Con. Informed
consent and 24 hr waiting period are uncon b/c they’re clearly designed to dissuade women
not to abort

G. Renquist’s Dissent: would uphold on rational basis review


1. What is the source of the right to an abortion?

A. Protection of bodily integrity, long-standing legal interest in this (although no litigant has
argued that they are entitled to an FDA drug b/c its unavailability is harming the person)
B. Interest in controlling the composition of one’s family (Griswold)
i) What’s problematic about this? There may be situations where the fetus could be taken
from the mother w/o risk and then be put up for adoption?
ii) What if you can solve for both interests? If the baby could be put up for adoption w/
minimal to no harm to bodily integrity, then can the state ban abortion? Then the
argument would be that a person has a right not to release their genetic material into the
world. This seems constitutionally problematic, it’s not obvious why this is right. The
genetic material argument would also raise additional issues for men’s rights.
iii) You could say that Roeis not an IFR case but rather, anti-abortion laws should be thought
of in the gender discrimination context. (But remember Geduldig—where Ct said that
pregnancy could be excluded. Then that might undercut the sex discrimination argument
for anti-abortion laws.) The cases themselves don’t treat it as sex discrimination until
C. Precedent and C/L
i) Loving: marriage rights
ii) Skinner: procration
iii) Eisenstadt: contraceptives
iv) Pierce v Society of Sisters: Held: OR cannot enact a law requiring all children to attend
public schools; it has not justified why it should interfere w/ parents’ decisions on how to
educate or raise their own children.
v) Meyer v NE: Held: State can’t criminalize a parent for teaching German to his kids;
parents have the liberty to decide how to bring up his children.
vi) Thus abortion is just another example.
D. Trimester framework: during the pre-viability phase, the mother’s interests are highest but as
the pregnancy progresses to viability, the state develops an interest in the fetus
2. Could the state argue that it has an interest in the fetus and that is sufficiently strong
enough to justify sex discrimination?
A. If you said that fetal life is the equivalent of human life, and if the legislature reaches the
same conclusion, then court should defer to the legislature.
B. The Roe court goes out of its way to say that a fetus is not a “person” w/in the meaning of the
14th. That still doesn’t answer the argument of whether a state can say that the interest is
strong enough to override reproductive freedom rights.
C. If you say that fetal life = person, then that would make abortion unconstitutional. (This idea
has not gained traction.)
Con Law: Equal Protection, 2009

3. Opposition to Roe
A. Opponents: make anti-Lochner arguments: the error of Roewas to take the decision away
from the legislature. The court created a right not in the Constitution and took a political
issue away from the legislature. Like FoK in Lochner, the Roe Court took an extra-
constitutional value, called it fundamental and then assimilated it into the Constitution.
B. Prof: but the oppositionist are really arguing that abortion is murder. The legal fight just gets
turned into a Lochner issue
4. Can the legislature override the implied fundamental right or engage in possible sex
discrimination by prohibiting abortions?
A. Good Samaritan Arguments: laws forbidding abortion would require mothers/women to act
like Good Samaritan and in general, we don’t require people to act like good Samaritans, ie
making a major sacrifice of their bodily integrity even to save someone else’s life. W/o
abortion, the law would force the mother to donate a part of her body to another being (ie it
would be problematic for the State to force you to contribute one of your kidneys to another
person, possibly a stranger, even if that is the diff b/t life and death for that other person.)
i) Response: You did something voluntary to create the fetus; it’s not the same as the kidney
case b/c there you might be forced to donate to a stranger
ii) Thompson’ Response: a fair number of abortions are the product of coerced sex, rape or
incest; beyond that, you can’t say that someone can avoid their good Samaritan obligation
by never having sex.
iii) Issue of action vs inaction: but can’t penalize people for having sex
B. Cts haven’t really taken to this argument:
i) Is it unconstitutional to impose financial child support obligations or is that diff from
imposing an obligation to continue the pregnancy?
ii) Child support is different—if you haven’t fully entered into a relationship or really
voluntarily undertaken it, then you can’t be held to the obligations that it creates. So the
idea that you have an obligation to a child is diff from that to a fetus.
C. Sex Discrimination Argument: prohibition abortions would impose an obligation on women
to donate a part of their bodies whereas men have no equivalent obligations
D. Prohibiting abortions would just cause the practice to go underground, resulting in greater
risks to the life and health of the mother. Alternatively, anti-abortion laws make it financially
difficult for people w/ fewer resources to get abortions.
i) Is that empirically true? It’s hard to know.
ii) Flawed premise: the inability to enforce something or weak enforcement isn’t a good
reason to strike down a law.
iii) Example: suppose there was wide discrimination against a minority group and it was
outlawed, could you strike down the law b/c it’s just not effective?
iv) Perverse incentives: this would encourage people to break the law and get enough
violations to make it in effectual to be struck down.
E. Prof’s Best Answer: like religious tolerance, the weight to be given to the fetal life interest is
not for the state or legislature to decide but rather, for the individual who is considering the
abortion to decide.
i) Thus the impact of Roe was to let the individual, not the state, decide how to weight the
fetal life interest.
ii) But this argument more than the other ones, have informed the legal analysis.

Con Law: Equal Protection, 2009

5. Less familiar criticisms of Roe

A. The SC in Roedid too much too quickly. At most, they should’ve struck down the TX law for
lacking an exception for life and healthof the mother. That way the law could’ve developed
incrementally as states reconsidered their abortion laws and brought them in line w/ moderate
laws instead of having a big symbolic decision that galvanized opposition to abortion.
B. The SC shouldn’t have done anything—the state trend was towards liberalizing abortion law.
Roenationalized the decision and mobilized the protesters while de-mobilizing the advocates.
Then the issue was taken away from the political process. Had it remained a political issue, it
would have greater salience.
C. Response: This is all speculative. And at any rate, if the SC thinks that a con right has been
violated, it has the duty to say that and not deflect so that the politics can be played out.
D. Medicaid: while the govt grants that there is a right to choose, the SC upheld a law
prohibiting the use of Medicaid funds for abortion, though it could be used for childbirth.
i. The Medicaid prohibition makes it difficult for poor people to get abortions.
ii. Prof: this is really just a Carolene Products issue—Roe/Medicaid Case make it difficult
for people w/ fewer resources to get abortions; instead the Court should have decided the
cases in such a way that the decision benefits the powerful and powerless equally.
6. Casey helps to justify Roe doctrinally:
A. Roe said that the right to privacy, while not explicit, can be derived from lots of things
including amendments in the BoR and cases on family relationships, procreation (Eisenstadt),
child rearing (Pierce) and education (Meyer). The right to privacy includes a woman’s
decision to terminate her pregnancy or not.
B. Casey reaffirmed the “essential holding” of Roe:
i. Woman has a right to choose an abortion before viability and w/o undue interference
from the State
ii. The State can restrict abortions after fetal viability provided that there’s a mother’s health
iii. The State has a legit interest from the outset of the pregnancy in protecting the health of
the woman and the life of the fetus.
C. Casey rejected the trimester framework of Roe but instead held that the right to choose is not
an absolute right; the State can regulate abortions as long as it doesn’t pose an “undue
burden” on a woman’s right to choose.
D. Casey strengthens Roe doctrinally:
i) Sex Discrimination: The state has to have a strong interest to justify interfering w/ a
woman’s right to choose; otherwise interference is tantamount to gender
discrimination. s Laws restricting abortion have a devastating sex-specific impact. If
the state can deny a woman the right to control her reproductive processes against a
societal background of male sexual aggression, then sex equality doesn’t mean
anything. Forced motherhood is sexual inequality. B/c pregnancy can only be
experienced by women, pregnancy has unique consequences and forced pregnancy
will always deprive and hurt one sex only.
ii) Stare decisis: this represents modern thinking about women, thus uphold Roe
iii) Implied fundamental rights exist
iv) Reproductive freedom/bodily integrity: is the justification; is grounded in case law.
Forcing a woman to carry to term is an unfounded intrusion into bodily integrity.
Con Law: Equal Protection, 2009

And she should have the right to control the composition of her family (goes beyond
vague privacy right)

Given that the state cannot outright ban abortion, how can the state regulate it?

1. Roe/Casey: can’t have a flat ban on abortion but the govt can regulate it:
A. Notice requirements
B. Regulate abortion clinics/facilities
C. Impose a waiting period
D. Impose regs/conditions on specific abortion procedures
E. Regulations cannot impose an “undue burden” on getting an abortion
2. Framework to determine the constitutionality of abortion restrictions:
A. Casey/Roe: a state cannot prohibit abortions pre-viability
B. A state can restrict abortions pre-viability but only if the restriction does not impose an
“undue burden” on getting an abortion
C. Those restrictions can include efforts to persuade the woman to choose childbirth over
abortion; state need not be neutral on the topic
D. Post-viability, the state can forbid abortions (b/c by then the state has an interest in the viable
fetus) but the state has to allow for an exception for life/health of mom
3. Gonzalez
A. SC upheld a fed law passed by Congress that forbade the particular partial birth abortion
procedure; it’s often used in the second semester, pre-viability (most abortions done in first).
The law was challenged b/c it lacked a life/health exception for the mother.
B. Held: SC said that while there was no exception, but the lack of an exception is justified:
Congress made factual findings that there is no medical consensus that this procedure is
sometimes necessary to protect a woman’s health/life.
C. Thus when there’s uncertainty about whether a particular method can be banned or used as a
health/life exception, SC will look at it on a case-by case basis. So a doctor who performed
or plans to perform this has to prove that he needs to do it to protect the mother’s health.
4. What’s an “undue burden?”
A. “Undue burden:” places a substantial obstacle in the path of a woman seeking an abortion of
a nonviable fetus
B. Fact-intensive inquiry; legislature will wind up making some value judgments about
C. Example: 24 hour waiting period is ok; 48 hours is an undue burden  but how a judge
decides is unclear
D. Example: Casey-spousal notification was struck down b/c it reinforced the stereotype that
women couldn’t decide for themselves or needed male approval
E. Prof: the “undue burden” test grants a lot of latitude to the legislature (and thus deference
by cts) unless there’s the obvious problem that the only thing going on is the state doesn’t like
abortionsstates can impose regulations that inform and even try and persuade but state
cannot covertly heavy-handedly take away a woman’s right to meaningful choice

Marriage and Family Relations as Privacy Interests

Con Law: Equal Protection, 2009

1. Fundamental interest to control family structure or fam living arrangements:SC applied SS

to a Cleveland ordinance that only allowed single-family housing, uniquely defined as no
grandparents unless it was grandparent-parent-child. This had the effect of disallowing
grandparent-grandchild families. ~Moore v East Cleveland
2. Why? This is inconsistent w/ (Harlan’s in Griswold) tradition:
A. Is there a tradition of grandparent-grandchild homes? Maybe, it’s hard to know.
B. What’s really going on: this statute is an outlier. No one else has an ordinance like this one.
So maybe when we say tradition, what we really mean is some sort of societal consensus that
is pointing in the opposite direction as the statute being struck down.
C. The SC has been suspicious of outlier cases before: Griswold, VMI, Lawrence
D. Is “tradition” a strong argument?
i. Yes
a. If something isn’t widely accepted in society, then there’s a reason to be suspicious
b. If we’re worried about courts being overly intrusive and taking over decisions better
left to the legislature, then the court is least intrusive when it goes after outlier cases
b/c it’s limited and not an attack on a widely-held view
ii. No
a. If the statute is really unusual and limited, then it’s easier to change without judicial
intervention: you could move out of E. Cleveland. It’s easier to run from a bad
zoning law than from a more widespread social phenomenon.
b. Maybe this is a unique solution to a unique problem. Perhaps this is an unusual
situation that requires uncommon living arrangements as the solution.
c. Killing the outlier may prematurely squash a trend that perhaps could be a good thing
in the future, we just don’t know yet.
d. Not clear that diversity is a bad thing; could be squashing innovation as well.
E. Criticism of the Mooreholding: the municipality passed this rule in order to protect the
particular structure of this neighborhood from potentially harmful forces. (Prof not sure if
this is factually true but it does highlight the difficulty of being suspicious of outliers.)
3. Possible Implied Right to Marriage
A. Zablockie v Redhail: SC struck down a law that forbade marriage by people w/ unpaid or
likely to not pay child support obligations.
i) Citing Loving, Griswold, Skinner and Meyer, the right to marry is of “fundamental
ii) If there’s a right to privacy and a right to procreate, then there must be a right to enter into
a legal relationship where the State allows sexual relations to take place legally.
iii) Rule: when a statutory classification significantly interferes w/ the exercise of a
fundamental right, it cannot be upheld unless it is supported by a sufficiently important
state interest and is closely tailored to effectuate only those interests.
a. WI argued that their law protects the welfare of out-of-custody children but in reality,
the statute only prevents marriage; it doesn’t put money in the hands of kids.
B. Turner v Safley: SC struck down a law that only allowed prison inmates to marry if the
warden found compelling reasons to grant permission; in practice that meant that if the
inmate was pregnant, she could marry, but that was it.
i) SC relied on Zablockie.

Con Law: Equal Protection, 2009

ii) There might be legit security concerns to letting inmates marry but this reg represented an
exaggerated response to security objectives.
C. Both cases are analyzed under the equal protection clause but the concurring opinions are
right when they say that these are really implied fundamental rights cases. It’s not that there
aren’t limits on marriage but rather, that these limits went too far in infringing on
fundamental rights b/c there was a lack of a compelling interest or narrow tailoring.
D. Prof: these might be outlier cases but not sure
4. Troxel and Family Relations
A. There’s an IFR against intrusions into the parent-child relationship but the scope is
B. Troxel v Granville:
i. In a plurality opinion, SC struck down the application of a law that allowed state courts to
grant child visitation rights to any person whenever ‘visitation may best serve the
interests of the child.’
ii. Plurality opinion noted that the parent-child relationship was the most long recognized
fundamental aspect of liberty and questioned the statute in light of its broad intrusion into
the parent-child relationship.
C. Troxel highlights the hostility to outlier cases.
i. Was this an attempt to bring dinosaur statutes up to date?
ii. Is this outlier a symptom of a trend heading in the opposite direction?

The Right to Die is Not an IFR Evaluate Under RBR

1. Washington v Glucksburg
A. Held: SC upheld a law prohibiting physician-assisted suicide and rejected a challenge that
prohibiting PAS denied terminally ill patients their liberty w/o due process. The common law
historically disapproved and punished suicide attempts and assisted suicides. WA has several
interests that satisfy rational basis to not allow assisted suicides. If state wanted to allow
assisted suicides, it could.
i) There is no fundamental right to commit suicide; under RBR, the prohibition on PAS
doesn’t violate substantive due process
ii) Under RBR, the difference b/t allowing individuals to refuse life support and the
prohibition of suicide doesn’t violate substantive due process
B. Test for a Fundamental Right: the due process clause specifically protects those
fundamental liberties which are objectively deeply rooted in this nation’s history and tradition
and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist
if they were sacrificed
C. Since there’s no fundamental right to commit suicide, use RBR and conclude:
i) states have a legit interest in preserving human life, the integrity of the medical
profession and the protection of vulnerable groups of people who may feel pressured into
terminating their lives
ii) the prohibition on assisted suicides did not violated substantive due process
iii) the distinction b/t allowing individuals to refuse life support and the prohibition of
suicide did not violate equal protection
D. O’Connor’s Limited Holding: (St. Thomas Aquinas Argument)
Con Law: Equal Protection, 2009

i) There might be a constitutional right to physician-assisted suicide when someone is very

close to dying AND is in pain. But she doesn’t have to decide that here b/c the state here
allows for drugs that reduce pain but have the additional effect of hastening death.
ii) Doctrine of Double FX: An action that has two FX, one permissible and one
impermissible, is ok to take as long as you’re targeting the permissible FX and not at the
impermissible FX.
iii) So aiming at pain reduction (w/ the secondary FX of hastening death) is ok and you have
a constitutional right to that.
iv) So despite it’s anti-IFR tone, maybe you do have some right to suicide—but since states
allow this practice, no need for Court to decide now.
2. Problems with the issue of suicide:
A. Bounded rationality prob: it’s really hard to assess the rationality of the decision to
voluntarily choose to die. When the decision is made while the person is very ill or injured
might be untrustworthy.
B. Living will: people may sign a living will saying that if they are injured, they don’t want life-
saving meds or procedures but again, the problem is assessing the rationality of the decision
b/c you may think differently when you’re in the situation then when you signed the will.
3. Conceptual legal problems
A. An injured/sick person in full control of their mental faculties can still refuse life-saving
medical help. It’s the tort of battery—you have a well-established right not to be touched.
(But in Glucksberg, SC doesn’t flat out say that there’s a constitutional right to refuse help,
but rather, it’s assumed that the patient has the right to refuse medical help.)
B. Is a rule like this different from the situation where the person voluntarily chooses to end his
C. It looks like after Glucksberg¸ the two situations should be treated in the same way but it’s
4. Double-edged sword problem:
A. If you don’t allow PAS, you keep someone alive who doesn’t want to be kept alive.
B. If you do allow PAS, you run the risk of killing people who don’t really want to be killed
(bounded rationality prob; plus people are subject to really subtle forms of coercion that
affect their independent decision-making ability.)
5. Monitoring problems: everyone involved wants to keep the decision private so it’s hard to figure
out what’s really going on. It’s possible that despite all this, PAS is still going on and we can’t
assume that there aren’t subtle pressures at play.
6. Glucksberg Rule: while there are implied fundamental rights, the right to assisted suicide isn’t
one of them.
7. Glucksberg Framework:
A. Is there an IFR or not?
B. If yes  use SS and ask if there’s a really strong reason to override it
C. If no  use RBR (although the justifications that the Court is giving is very strong—much
more than is normally necessary to meet RBR)
8. Souter’s alternative approach: really important rights should get something stronger than RBR
9. It’s not clear if the Glucksbergtwo-tiered approach settles the issue of how to treat important, but
not fundamental rights. Lawrence is not written using this two-tiered approach.

Con Law: Equal Protection, 2009

10. SC says there can be no IFR to PAS since suicide has been outlawed forever and assisting
suicide has been outlawed forever. Response:
A. It’s true that historically, suicide has been outlawed but such laws have been scaled back. No
longer do we punish the heirs of a suicidal person, thus the anti-suicide tradition is eroding.
i) SC will say: that’s irrelevant b/c those laws were punishing people who were totally
innocent. We’re still against people committing suicide.
B. There’s no anti-suicide “tradition.” What’s going on here is a misnomer: these people are
usually near the end of life, and are in great pain. They can’t die a natural death because
modern medicine is keeping them alive, perhaps artificially. Before modern medicine, when
people got this sick, they’d die quickly.
i) SC will say: the legislatures have continually re-examined and re-affirmed the laws
against PAS in light of modern medicine. So we’re upholding a tradition that has been
re-evaluated and determined to be in line with prior thinking.
11. The “re-examination” argument:
A. In the sex discrimination cases, the Court was targeting archaic laws that were based on old
notions of thinking. But if the legislature had thought about the issue again, in light of
present-day understandings, that was a reason to defer to the legislature.
B. We want the laws on the books to reflect current political consensus. But if they are just
outdated hangers-on, then we’re more likely to strike it down.
i) Griswold law was outdated
ii) VMI was outdated
iii) Lawrence: law struck down but no modern consensus
C. Using the re-examination argument to squash outliers is difficult though b/c you don’t know
if an outlier is archaic (unless there’s lots of data points) or pioneering.

Treatment of Homosexuals
1. Bowers v Hardwick (1986)
A. Hardwick was arrested for engaging in homosexual activity in his bedroom. GA
sodomy law provided that a person violates the law when he engages in sodomy. In
practice, the law was being enforced against homosexuals mainly.
B. Held: The Ct upheld the statute finding that the right to privacy doesn’t include the right for
consenting adults to engage in homosexual activity, even in the privacy of their own homes.
It’s not the same as fam, marriage or reproduction. Sodomy was an offense at common law.

i. Rule: rights should be protected as fundamental only if they are supported by the
constitution’s text, the framer’s intent or tradition of being safeguarded.
ii. Dissent: Argued for an expansive fundamental right that allindividuals have in
controlling the nature of their intimate associations with others.
iii. Blackmun:argued for the right to be let alone, which includes the “decisional” dimension
of protecting intimate choices and the “spatial” one protecting certain places, notably
one’s home, from govt intrusion. Together they mean that an individual has the right to
conduct intimate relationships in the intimacy of his own home.

2. Lawrence v TX (2003)
A. Facts: TX law makes only homosexual sodomy illegal.

Con Law: Equal Protection, 2009

B. Held: The law violates the due process clause b/c it does not further a legit interest of govt
that would justify such a severe intrusion onto personal privacy.
C. Rule: heterosexuals and homosexuals have an implied fundamental right to conduct their
intimate relationships without state interference. This does not create an implied fundamental
right to sex between unmarried persons.
D. O’Connor’s concurrence: would strike this down on equal protection grounds b/c the only
justification for the law is moral disapproval of gays, a politically unpopular group
E. Scalia’s Dissent: “emerging awareness” can’t qualify as a fundamental right that invokes
strict scrutiny. This is a return to Lochner where courts are acting as super-legislatures and
reviewing the wisdom of the legislature’s decisions.
3. Lawrence did not resolve:
A. Gay marriage (Lawrence very careful to say that they are not holding that there is a right to
gay marriage)
B. Other laws that discriminate against gays (ie no gay adoption, no gays as elementary school
teachers—an unofficial practice)
C. Lawrence only focuses on intimate relationships and is not written in equal protection terms.
4. Should gays be treated like a suspect class?
A. Generally, SC is out of that business (hasn’t done that since the gender cases)
B. Do they have immutable or unchangeable characteristics that make them easy to id?
a. Argument: having an unchangeable characteristic increases the likelihood of creating
suspect classifications.
b. Prof thinks this is bogus:
c. Not Sufficient: the state can legitimately discriminate based on certain unchangeable
d. Not Necessary: just b/c you can change something doesn’t mean you can’t create
suspect classifications; ie religion—people can change religions and yet still be
discriminated against
C. Are they subject to prejudice?
D. Are they a Carolene Products minority?
5. The opinion isn’t clear about whether it’s using IFR or RBR analysis.
6. Lawrence could be the basis for expanding the rights of homosexuals.

Fundamental Rights Wrap-Up

1. SC will apply strict scrutiny under DPC and EPC to any govt actions that limit the exercise of
“fundamental constitutional rights,”—rights recognized as being essential to individual liberty.
2. It’s a recognition of the natural rights philosophy espoused by Justice Chase in Calder.
3. After FDR’s court-packing plan in 1937, the SC announced in Carolene Products that it might not
completely reject the use of substantive due process for laws that impinge on specific
constitutional guarantees or disadvantage certain minority groups.
4. Skinner v OK (1942)
A. Facts: if you’re guilty of committing 3+ crimes of “moral turpitude,” then you’ll be sterilized.
The law did not apply to certain offenses like embezzlement, but did apply to larceny, which
is virtually the same thing.

Con Law: Equal Protection, 2009

B. Held: Marriage and procreation are fundamental to the existence and survival of the race.
The artificial lines b/t larceny and embezzlement violated the EPC b/c it could not withstand
scrutiny to which the fundamental nature of the right was to be weighed against.
C. What’s really going on?
i. SC did not create an IFR to bodily integrity but rather, went beyond traditional rational
relationship review and employed heightened scrutiny b/c the punishment involved
marriage/procreation, which receive some special constitutional significance.
ii. This establishes the basis for “fundamental rights” analysis under the DPC and EPC
when you regulate certain things (ie fundamental rights), courts are going to be more
suspicious of what you’re doing.
iii. This occurs after Lochner. If the SC has created an implied fundamental right in Skinner,
then they would’ve had to overrule Holmes (the champion of anti-Lochner sentiment) in
Buck v Bell(1927-held: the legislature is more suited to determine the necessity of
sterilization; upheld a sterilization statute). SC doesn’t want to make up a right and
overrule Holmes, so they decide this on equal protection grounds.
5. Skinner Takeaway:
A. If the govt acts in certain areas that are essential to liberty (but not necessarily “fundamental
rights”), the lines have to be justified by strict scrutiny
B. It’s the foundation for:
i. “One person, one vote” principle
ii. Attempted to be used in welfare and education