Strict Scrutiny
Compelling State Objective
Necessary Means
1. Facial Racial
2. As Applied Racial if law is for Racial Purpose
3. Fundamental Rights- must be unduly burdensome (keep people from
doing it)
Privacy- sexual preference- right to live with family- Marriage,
Sexual Relations, Child bearing- Right to educate one’s
child as desired-
Association
Travel
Vote
Procedural Due Process
Speech
Religion
Refuse Medical Treatment
4. State Discrimination upon legal alienage
Usually can only regulate self governing function-
mere rationality
(ie. who can run for office, vote, teach, be a policeman)
Middle Analysis
Important Objective
Substantially Related
1. Gender
2. Illegitimacy
3. State actions on illegal aliens
Mere Rationality
“Rational Relation”
Legitimate
Rational Relation
1. Wealth- Poverty is not suspect class
2. Unequal Protection of homosexuals
3. Public Education
4. Business Regs.
5. Abortion- can regulate when baby is viable.
-Minors do have to get parental consent unless judge says
its okay they can get it without parental consent.
-Can provide for waiting period before abortion 24 hours
-Can provide they must go through counseling before
-State is not going fund your abortion
6. Commercial Speech
7. Federal action on alienage
8. Age- not a suspect class
1.
2. Substantive Due Process 14th Law impairs a right to entire population
not protected classes
3. Equal Protection 5th
and 14th
Race
Gender
Sexual Preference
Age
Wealth- Not sensitized
4. 1st Amendment
Privacy
Association
Medical Treatment
Travel
Content v. Conduct
Fighting Words
Commercial Speech
TPM
Prior Restraint
Public v. Private Forum
Right to Die- can establish clear and convincing standard that patient wanted
plug pulled.
Denying
Social Security Benefits to person’s living outside the
pay because congress can regulate international travel.
Race and Alienage (Highly Suspect Class) As Applied Analysis
If it is intentional- Strict scrutiny- compelling state interest Look at:
1. Disparate Impact- Statistical Impact- One group getting screwed
2. History of the problem
3. Legislative intent – purpose
4. Is test fairly administered.
If not intentional go to mere rationality analysis
Race and Alienage are suspect class- if facial discriminatory – strict scrutiny.
Affirmative Action- Strict
Scrutiny
1. Narrowly Tailored
2. No Quotas- Considered a quota if race is only factor used
3. Correcting a specific past wrong- can’t be general racism – racism has to be in
particular field
Alienage
Self-Government function- mere rationality
Gaining benefit from taxes- strict scrutiny
Illegal Aliens- intermediate scrutiny for state law
Fed law- mere rationality because feds have interest in contolling
federal affairs
1st
Amendment Rights
1. Importance of Right (always important)
2. Nature and scope of restraint (Burden on Individual)
3. Government Interest (Purpose)
4. Narrowly Tailored (Application)
Vague Laws (5th Amendment, Criminal Due Process)
1. Fail to give adequate notice of what conduct is prohibited
2. Invite arbitrary and discriminatory enforcement
3. Cause people to steer out of boundaries which has chilling
affect.
Overbroad (14th Amendment)
1. Prohibits more than what is allowed to prohibit
Speech Gov’t Can Regulate
1. Fighting words
2. Obscenity
3. Defamation
4. Commercial Speech
Analysis
1. Content v. Conduct
Is it content or conduct based?
2. If it is Content Based:
1. Can the gov’t regulate the speech (Fighting words, obscenity, defamation,
commercial speech)
2. If Commercial speech, in entitled limited const. protection
3. Is there special circumstances? Political campaign or Public employee
Special rules apply
4. If none of the above, strict scrutiny applies
3. Is it Conduct Based? (As applied)- Content neutral
1. Does it restrict expressive conduct?
2. Does the restriction restrict content of speech?
4. What type of Forum are we in?
1. Public- regulate Time, Place, & Manner
2. Non-Public Forum- reasonably related restrictions
5. Prior Restraint
1. Presumption of Unconstitutionality
6. Vague or Overbroad