Constitutional Law: Protection of Individual Rights: Equal Protection: Levels of Review
- Strict Scrutiny
- To determine if class is suspect:
- Look to see if there are unalterable characteristics AND
- A history of purposely unequal treatment
- Intermediate scrutiny
- Note that it also applies to regulation of cable television.
- To be substantially tailored, there must be an exceedingly persuasive justification.
- Rational Basis Review
- Burden on plaintiff, NOT government.
- Equal Protection MBE Analysis: Where equal protection will be the right answer and where it will not be the right answer.
- Hypo: State passes law which discriminates against you on the basis of race
- Strict scrutiny will apply and the state will probably lose.
- If the subject matter of the question is strict scrutiny, pick the equal protection answer. Under strict scrutiny, a law is presumptively invalid.
- Hypo: State passes law that all busses must be equipped with seatbelts. You own a bus company in this state and are being treated differently than other individuals. Applies only to busses, not other vehicles (rational basis review). This comes under a social/economic welfare regulation.
- (1) First figure out what the classification is; how is the government drawing a distinction among people?
- (2) Determine what level of scrutiny should be applied.
- (3) Ascertain whether the law meets this level of scrutiny.