Heightened Scrutiny And Gender

Transcription

1 Heightened Scrutiny And Gender Nguyen v. INS (2001); Sessions v. Morales-Santana (2017) What makes a difference real? Difference theory Real differences and substantive values Ruth Bader Ginsburg

2 Heightened Scrutiny And Gender Benign gender classifications Comparative constitutionalism The Equal Rights Amendment Statutory regulation of sex discrimination

3 Romer v. Evans (1996) Sexual Orientation o Facts; issue; Equal Protection Clause challenge The state s principal argument State and local government anti-discrimination laws; the impact of Amendment 2 The amendment imposes a special disability upon those persons alone.

4 Romer (cont.) Does Amendment 2 bear a rational relationship to some legitimate end? The amendment seems inexplicable by anything but animus toward the class that it affects. It is a status-based enactment and a classification of persons undertaken for its own sake... A State cannot so deem a class of persons a stranger to its laws.

5 Romer (cont.) Justice Scalia dissenting: a Kulturkampf a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. Regarding animus and reprehensible conduct: murder, polygamy, animal cruelty Bowers v. Hardwick (1986) The political power of those who engage in homosexual conduct The Court takes sides in the culture wars

6 Sexual Orientation Standard of judicial review Strict scrutiny Intermediate scrutiny Rational basis with bite Rational basis Same-sex marriage

7 Alienage Sugarman v. Dougall (1973) o Facts; the precise and narrow issue presented Are aliens protected by the Equal Protection Clause? The citizen-alien distinction Standard of review: close judicial scrutiny Court: state may require citizenship of voters; elected state officer; important non-elected executive, legislative, and judicial positions; officers participating directly in formulation, execution, or review of public policy Justice Rehnquist s dissent

8 Wealth Classifications The poor and indigent Facial discrimination against the poor De facto wealth classifications Wealth discrimination The Constitution and affirmative rights

9 Other Disadvantaged Groups Developmentally challenged persons (City of Cleburne) Disabled persons (Lane and Title II of the Americans with Disabilities Act) o ADA Title I? Children born to unmarried parents The aged

10 Implied Fundamental Rights Originalism(s) Original intent (drafter) and expected applications Original understanding (ratifiers) Original public meaning: meaning of the text to average members of the public at the time of adoption o Interpretation (semantic meaning the text) and construction (translating the semantic meaning into a legal rule) Alternatives to originalism

11 Implied Fundamental Rights The Privileges Or Immunities Clause All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States... U.S. amend. XIV, Sec. 1 (1868) The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. Art. IV, Sec. 2

12 Implied Fundamental Rights The Privileges Or Immunities Clause The Slaughter-House Cases (1873) The pervading purpose of the Thirteenth and Fourteenth Amendments citizens of the United States and of the State wherein they reside Corfield v. Coryell (1823) and Article IV, Section 2 Did the Fourteenth Amendment transfer the protection of the civil rights of citizens of the states from the states to the federal government?

13 The Slaughter-House Cases (cont.) The P or I of federal citizenship Justice Field, dissenting: the Fourteenth Amendment protects United States citizens from the deprivation of their rights by state legislatures; o P or I are those which of right belong to the citizens of all free governments, including the right to pursue a lawful and necessary calling Justice Bradley, dissenting: states cannot infringe or subvert the fundamental rights of citizens (rights of personal security, personal liberty, private property); this includes the right to follow a profession or employment as one chooses

14 The Fourteenth Amendment And Incorporation The Slaughter-House Cases nullified the Privileges or Immunities Clause as applied to the states Litigants turned to the Due Process Clause o Substantive due process Incorporation o Not incorporated against the states: Third Amendment restriction on quartering soldiers in private homes; Fifth Amendment right to grand jury; Seventh Amendment right to jury trial; Eighth Amendment prohibition of excessive fines (currently before the Supreme Court in Timbs v. Indiana (oral argument on 11/28/18)

15 The Second Amendment A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. U.S. amend. II (1791) See District of Columbia v. Heller (2008)

16 The Due Process Clause And Incorporation McDonald v. City of Chicago (2010) o Facts; issue; D.C. v. Heller (2008) Plurality declined to find incorporation of the Second Amendment via the P or I Clause Held: the Second Amendment is applicable to the states via the Due Process Clause of the Fourteenth Amendment 1850s; post-civil War developments; Fourteenth Amendment debates; state constitutions in 1868; 50 years of incorporation precedent