| Perhaps it is possible to discuss this subject on SI. We'll see.
Please read the outline below, before you opine. I've bolded the most important sections wrt this issue. If I consider your posts worthless, I won't let you post here. Worthless might include- failing to read, or failing to understand the law- which makes your post boring and worthless. Articles are fine, as long as the person writing the article understood the law- please make sure you aren't posting some blogger who doesn't understand the law any better than you did before you read the outline below- you are responsible for what you post. There are no hard and fast rules about banning- I hate whining, and I don't want to give you anything to whine about legitimately. If you post here, you post at my pleasure:
Equal Protection
Source: 14th limits state, 5th limits federal
Does not guarantee equal treatment – only equal laws.
Protects people, not groups. Ensures personal right to equal protection of the laws.
Scope
De Jure: Facial, Application / Administration, Motive - what we have in the gay marriage issue
De Facto (effect): Not actionable unless showing of intent.
Tests for determining if classification is a justifiable means:
Strict Scrutiny: Requires that classification be necessary to achieve a compelling state interest, with presumption of invalidity. Requires narrowly tailored means.
Suspect class (race, national origin, alienage)
Factors
Immutable characteristics, defined by society
Discrete and insular minorities
Historical lack of political power and group discrimination
Exclusion from political process
Profiling
Greater deference for security (national, local) and borders (patrols)
Allowed if based on identifiable problem, such as Asian gang task-force.
Desegregation
Plessy: Separate but equal is ok
Brown I & II: Separate but equal is inherently unequal due to qualities incapable of objective measurement. Whole purpose of separation is inequality, therefore impossible to be equal.
Mandate to affirmatively act to desegregate de jure segregated schools. De facto segreagated schools (mainly in the north) were mandated to desegregate, if showing of purposeful segregation (broad), but not only if impact was segregated.
Bussing ok, but can’t risk health or educational process of children because of long distances.
Multidistrict remedies ok only if violation in one district had significant segregative effect on another district.
Federal supervision intended as temporary measure to remedy past discrimination.
Benign discrimination (affirmative action) is viewed using the same strict scrutiny test. Government may has a compelling interest in remedying past discrimination, so long as the past discrimination is identifiable. Not just general societal discrimination.
Prohibited by 209 in California.
Race can be taken into account by school admissions, i.e. deem it a plus, in order to remedy past purposeful discrimination. Quotas not permitted. Diversity interest alone will not satisfy strict scrutiny.
Minority set-asides and other employment related stuff: Societal discrimination alone is not enough justification. Must have showing of past discrimination by government unit involved. Elimination of actual racial imalances in traditionally segregated job categories is fine, need not be limited to actual victims of prior discrimination. Set-asides by congress are given substantial deference.
Legislative apportionment can include race as a factor (majority-minority districts), so long as minority strength not minimized and race is not dominant factor.
Fundamental rights
Equal Protection: Treating people differently based on the exercise of a fundamental right.
Travel
Short limits, such as 30 day residency to vote, are ok
Right is for migration and change of domicile – not visit or pass through a state.
Voting
Apportionment: Each congressional district must contain the same population as nearly as practicable, because each voter is entitled to have an equally weighted vote. Deviation < 10% is permissible, without further explanation.
Constitution does not require that state officials be elected, but if they are elected, the votes must be equally weighed.
Infringement on equal right to vote
Selective denial of franchise based on anything other than residence, age and citizenship is prohibited without compelling state interest.
Individual vote dilution: Must maintain same ratio of elected officials to population. Reapportionment every 10 years. Showing that a smaller deviation was possible is a prima facie case, state must show legitimate state objective.
Group vote dilution (usually achieved by at-large voting). Must show that the members of the group lack an equal opportunity to participate and influence in the local political process. Suspect intent required for strict scrutiny.
Assignment of voters to districts based on race (majority-minority districts), unless compelling governmental interest. Gerrymandering (redistricting to disadvantage identifiable racial or political group): Intent to discriminate plus effect that consistently degrades influence.
Denial of access to ballot. No fundamental right for candidate to be on ballot, but fundamental right to vote for candidate, and right to associate with others for political purposes and to advance a candidate.
Marriage
Enumerated rights
Intermediate Scrutiny: Requires that classification be important to achieve an substantially (now: exceedingly) related state interest.
Quasi-suspect class (gender, alienage, legitimacy)
Classifications upheld when realistically reflects the fact that the sexes are not similarly situated in those certain circumstances, and when classification is substantially related to achievement of asserted government interest.
Applies whether discriminatory or benign (compensatory to women, but generally upheld).
History of gender cases
1971: No gender preferences in choosing administrator of estate.
1973: No gender preferences in military benefits.
1976: No laws preventing women from bartending. First use of new intermediary test.
1981: Different gender-ages for statutory rape laws are legal.
1982: All female nursing schools are not permissible.
1986: Peremptory challenges unconsitutional
1996: All-male publicly funded military institute must open up to women, although separate but truely equal school for women would be okay.
California applies strict scrutiny for state gender cases.
Alienage
Federal: Supremacy clause gives deference to federal government over state government. Subject to rational basis test.
State: Strict scrutiny except when political function, such as a job involving public policy (teacher, police), then rational basis test is used.
Denial of welfare benefits to aliens or free public education to undocumented aliens prohibited.
Quasi-fundamental right
Rational Basis: Requires that classification be rationally related to legitimate state interest (examine congressional intent) without much regard for efficiency of the law (deferential/traditional rational basis), and that the means be a reasonable way to accomplish the goal. Presumption of validity: Overturned only if p proves the law is invidious, wholly arbitrary or capricious.
No suspect or quasi-suspect class
Court can look for group animus (Romer) or unfair treatment and adds additional "bite" to the test, which approaches the level of intermediate scrutiny.
Includes mental retardation and sexual orientation. But court looks for overinclusiveness/underinclusiveness and
Romer overturned Amendment 2 because it withdrew from gays, but no others (i.e. opticians), the ability to utilize the government process to create legal protections. State cannot so deem a class of persons a stranger to its laws. You can’t make it more difficult for one group of people to achieve legislation than for another group of people.
Same sex marriage: Challenge on EP gender grounds would kick it up to intermediate scrutiny.
No fundamental right involved
Poverty / subsistence
Access to courts: Waiver of court fees for fundamental interests
Education. Discriminatory laws use intermediate scrutiny. Prohibits laws which totally deny some children the chance to acquire minimally adequate education. Disproportionate financing is ok.
Public benefits
Access to ballot
Misconguence: Law trying to prevent a certain type of mischief includes non-mischievous people (overinclusive) or misses some of the mischievous people (underinclusive). Vagueness.
State Action requirement
Deprivation of right must have been caused by state law
State actor
Government official
Private performance of public function
Private jail
Private company town
Shopping centers: Not federal, but yes for state (Pruneyard Free Speech rights).
Court is very hesitant to expand this to private schools, utilities, etc.
That activity which is sanctioned by the government and traditionally and exclusively the power of the state.
Judicial enforcement of private agreement
Racially restrictive covenants
Joint activity of government + private actor
Liquor license for a private discriminatory club isn’t enough. But other laws have been created to prohibit such discrimination.
Mutual benefit, more than government funding of a private activity.
Exercise of preemptory challenges (racial jury bias)
Government endorsement of private conduct
Enabling clauses of the 14, 14 and 15 Amendments
Congress can make laws to remedy an already recognized wrong or right. Cannot define scope of the rights. May include civil damages, or criminal damages.
Slavery: Extended to badges & incidents of slavery, including refusal to enter into private contracts based on race (therefore exclusion from private school based on race). §1985 protects enjoyment of basic civil rights from racial discrimination, which includes right to use public highways. Private conspiracy to deny that right is illegal. Expands to all racial groups –Not just blacks |
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