Is the regulation
about race /
facially discriminatory?
RACE
NO
GENDER
Affirmative
action?
YES
Is there a
disproportionate
impact?
Is the regulation
about gender /
facially discriminatory?
Y
Is there enough evidence
to suggest a
discriminatory purpose?
Affirmative
action?
DISABILITY,
AGE,
POVERTY,
SEXUAL
ORIENTATION
VALID
YES
VALID
NO
INVALID
Shift burden to
government to prove the
absence of disc purpose
YES
NO
YES
YES
Is there a
disproportionate
impact?
Shift burden to
government to prove the
absence of disc purpose
YES
VALID
NO
INVALID
VALID
YES
VALID
NO
INVALID
If govt cant prove
absence, the regulation
is invalid and NO
compelling interest may
override its invalidity
NO
NO SDP claim.
Enumerated
Bill of Rights
Historically
protected by law
YES
Is there a fundamental
rights deprivation?
NO
Rational Basis
legitimate state
interest
reasonably related
-Economic Rights
- Die
-Assisted suicide
-sexuality
Unenumerated
"Implicit in the
concept of ordered
liberty"
US-centered
Civil Society
generally
YES
Strict Scrutiny
-Narrowly tailored
means
-Compelling state
interest
-Undue burden test?
(Carey)
Privacy
Intimate relations
Incorp. BoR
Raise children
Procreate
Contraceptives
Ext. family living