““In order to get beyond racism, we must first In order to get beyond racism, we must first take account of race. There is no other way. take account of race. There is no other way. And in order to treat some persons equally, And in order to treat some persons equally, we must treat them differently. We cannot-we we must treat them differently. We cannot-we dare not-let the Equal Protection Clause dare not-let the Equal Protection Clause perpetrate racial supremacy.”perpetrate racial supremacy.”

Justice Harry Blackmun, 1978Justice Harry Blackmun, 1978

•The founders believed that social and economic inequality was a bi-product of having a free state

•Therefore they felt that providing provisions to protect the “less fortunate” would encroach on the rights of others

Section 1:

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; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

1. STRICT SCRUTINY TEST1. STRICT SCRUTINY TEST – Is there – Is there compelling state interest in a legislative compelling state interest in a legislative classification? [Applies to suspect classifications and classification? [Applies to suspect classifications and fundamental rights]fundamental rights]

Suspect Classification = raceSuspect Classification = race

Only once has the Supreme Court allowed the Only once has the Supreme Court allowed the state to regulate based on race – WWII Japanese state to regulate based on race – WWII Japanese Internment CampsInternment Camps

2. EXACTING SCRUTINY OR STRICT RATIONALITY TEST – Does the legislation substantially advance a desired end which is reasonably related to a legitimate state interest?[Applies to quasi-suspect categories]

Quasi-suspect categories = genderQuasi-suspect categories = gender

There may be legitimate reasons to classify based There may be legitimate reasons to classify based on the differences between genderson the differences between genders

An example would be separate restrooms and living An example would be separate restrooms and living facilities in State collegesfacilities in State colleges

3. Minimal Scrutiny Rational Basis Test – Is there a rational basis or reasonable basis for legislation? [ Applies to economic regulation and nonsuspect classifications]

Basically every law draws some sort of classification between people.

i.e. 40 mph speed limits

Which of the tests could be applied to Which of the tests could be applied to the following scenario?the following scenario?

A state law stating A state law stating that in order to be a that in order to be a certified carpenter certified carpenter one must weigh a one must weigh a minimum of 180 lbs minimum of 180 lbs and have a high and have a high school diploma.school diploma.

ALL 3:ALL 3:

1.1. Strict ScrutinyStrict Scrutiny – if it can be proven that the – if it can be proven that the percentage of African Americans is lower than percentage of African Americans is lower than Caucasians than you could say it is biased based Caucasians than you could say it is biased based on race.on race.

2.2. Exacting ScrutinyExacting Scrutiny – Since women are less likely to – Since women are less likely to weigh 180lbs. the law discriminates against weigh 180lbs. the law discriminates against womenwomen

3.3. Minimal ScrutinyMinimal Scrutiny – the law is assuming that people – the law is assuming that people who weigh less than 180lbs. and don’t have a high who weigh less than 180lbs. and don’t have a high school diploma are not good carpenters.school diploma are not good carpenters.