Professional Documents
Culture Documents
as applied to the federal government through the 5th amendment and the states through the 14th amendment
NO
Private actors are generally exempt from PDP requirements No violation of procedural due process
NO
YES
NO
There is no property interest in unilateral expectation of employment Harm to reputation, standing alone, does not implicate deprivation of liberty or property triggering Due process
NO
YES
APPLY WHERE THERE IS A LAW (STATE ACTION) THAT AFFECTS THE RIGHTS OF ALL PERSONS WITH RESPECT TO A SPECIFIC ACTIVITY:
Fundamental Right?
marry, divorce, and maintain children Family Relations Contraceptives Right to Die Refuse medical care Private consensual sexual activity Obscene material in privacy of home (not child porn) Abortion
NO
Not Fundamental?
Economic regulation Or any other nonfundamental right
YES
YES
APPLY RATIONAL BASIS Challenger has burden Legitimate state interest (To protect health, safety, and morals of adults and children) o Morals cannot stand alone Means are rationally related (but not necessarily the best way)
APPLY STRICT SCRUTINY Government has burden Compelling government interest? o Morals cannot stand alone Narrowly tailored and least restrictive means? (best way and no reasonable alternative)
YES
APPLY PP v. CASE TEST Pre-viability? State can regulate But no undue burden (substantial obstacle) on mother to get abortion -24 Hr waiting period, requirement by license Doctor Post-Viability State can ban o Health and Safety Exception -Never need spousal consent. -Minors need judicial bypass option. -No government duty to subsidize abortions.
YES
NO
YES
LAW IS VALID
LAW IS INVALID
APPLY WHERE THERE IS A LAW (STATE ACTION) THAT AFFECTS THE RIGHTS OF SOME PERSONS WITH RESPECT TO A SPECIFIC ACTIVITY:
SUSPECT
(Discreet, Insular minorities)
QUASI-SUSPECT
Gender Illegitimacy Undocumented alien children
NON-SUSPECT
All others Age Sexual orientation Mental Disability Undocumented Adult aliens Poverty Anything not in another classification
Race Ethnicity/National Origin Alienage Except Rational Basis Test for o Government function of state that has direct impact on public policy (employment, licensure) o Congressional action on Feds (plenary power) Affirmative Action Based on race (gender is intermediary scrutiny) o Employment Remedying past or present discrimination in a particular institution o Higher Education Individual review to achieve diverse student body
INTERMEDIATE
Government has burden Exceedingly persuasive interest for gender? OR Important interest for illegitimacy? OR Substantial interest for undocumented alien children AND Government interest substantially related to achieving means?
RATIONAL BASIS
Means are rationally related (but not necessarily the best way)
o Government loses if means are arbitrary or irrational
STRICT SCRUTINY
Government has burden Compelling government interest? o Morals cannot stand alone Narrowly tailored and least restrictive means? (best way and no reasonable alternative)