Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 3

Sex Discrimination

• Key to applying EP here is to sort out respects in which men and women are alike from the aspects in which they are truly, necessarily different based on biological manner
  • When they are inherently different → tightly limit government sex-based classification to those circumstances
• Level of scrutiny? Used to be analyzed under rational basis until Craig v. Boren, law that barred men from buying 3.2% beer until they were 21 but allowed women to do so at 18 was unconstitutional
  • Intermediate scrutiny applied: gov. Interest was safe roads, men were 10x more likely to drink and drive
    • Problem here was that the age group was barely any different in bad driving rates
    • Over-inclusive as it kept many law-abiding beer drinkers from purchasing the beer
      • Under-inclusive as it didn’t prohibit the consumption of alcohol among 18-20 y/o men
        • (didn’t satisfy the end)
• U.S. v. VA, when sex discrimination is unconstitutional → same-sex education
  • Essentially outlaws higher education same sex education programs if there are major differences between the sexes and someone of the opposite sex applies
    • Much of this was based on physical demands of the military institute
  • Appears to shift scrutiny analysis for sex classifications closer to SS
    • Government burden was raised to “exceedingly persuasive justification”
    • Wallace doesn’t think that’s right
      • Also doesn’t think this would apply at lower level institutes
• Biological differences?
  • Scotus has upheld laws against EP challenges based on biological differences
    • Example – pregnancy, sex-specific statutory rape laws (ie-only men get charged)
• Other cases (based on differences of capabilities)
  • Only men pay alimony upon divorce? Unconstitutional
  • Property tax exemptions for widows? Constitutional

Rational Basis Review

• Basic test: Law must be rationally related to a legitimate government purpose (presumption of rationality)
• Applies to social and economic legislation that does not employ suspect/semi-suspect classifications or impinge on fundamental rights—
  • e.g., Railway Express Agency v New York (public safety); Williamson v. Lee Optical (public health)
• “Legitimate purpose” is any conceivable legitimate government purpose, even if not the actual purpose of the law
  • Unlike intermediate and strict, this is about any potential purpose
    • Intermediate and strict are actual purpose
• “Rationally-related” means: over- and under-inclusiveness irrelevant
• Deferential review assumes that correction of socio-economic legislation is best left to political process, where gains and losses can be expected to even out over time
• Exception: Heightened rational basis scrutiny (rational basis “with a bite”) RARE
• When RB would otherwise be appropriate, but factors are present that warrant a higher level of scrutiny: animus, indicia of suspectness, or an important right is affected
  • Wallace: Apply if law can’t be explained by anything other than bare desire to harm
    • Look for other government purpose
  • Burden shifts to government, does not allow over/under-inclusiveness
  • Looking for when government acts with some sort of animosity towards someone
  • Difficult to apply b/c requires court to infer motive without evidence of real hostility
    • Never really direct evidence
• Romer v. Evans: (before gay marriage was fundamental right)
  • Anti-discrimination laws repealed based on vote
  • Court avoids whether or not sexual orientation deserves heightened scrutiny → strikes down based on animus doctrine
    • Hostility towards gays, motivation of amendment is just to harm them
    • Equates sincere religious or secular moral opposition with hatred
  • How court inferred animus here
    • Text expressly singled out “homosexuals, lesbians, bisexuals” and withdrew protection from them but no others •
    • CO amendment barred all government action (legislative, executive, & judicial) at any level that protected gays •
    • CO amendment permitted citizens to obtain nondiscrimination protections at local level, except for gays who were forced to see constitutional amendment by supermajority vote to gain same protections
    • SCOTUS described CO amendment as “unprecedented in our jurisprudence”—no similar laws passed anywhere else •
    • SCOTUS held that the CO amendment swept so broadly that it did not serve any legitimate purpose

Other EP Classifications

• Ethnicity, national origin, alienage all get strict scrutiny
  • Alienage exception: RB is used if:
    • Classification is related to government or political functions;
      • Citizens may retain right to govern and carry on a government function
        • Example – state can only allow citizens to be cops or teachers
    • Federal laws discriminating against aliens; and
    • Discrimination against illegal aliens
• Illegitimacy (nonmarital children): strict scrutiny for marital vs nonmarital children (Levy) and intermediate scrutiny among nonmarital children
• Sexual orientation: Rational basis
  • But- often gets treated as Heightened (animus doctrine)
  • Age, socio-economic status also not suspect classes
• Kotch v. Board of River Pilot Port Commissioners: EP doesn’t ban discrimination on basis of birth & blood (i.e., nepotism)
  • Man had only been hiring his family members pretty much

Factors that Make a Classification Appropriate for Heightened Scrutiny under EP:

1. History of invidious discrimination?
2. Immutable (unchangeable) characteristic?
3. Exclusion from Political Process?
   1. People with no power in political process
4. Not dispositive
   1. Heightened scrutiny usually only applied when all three boxes are checked