Mastering the Bar Exam: Constitutional Law - Equal Protection and Discrimination (Session Five)

Strict Scrutiny

Applied to laws that affect fundamental rights or target suspect classifications (such as race or national origin), strict scrutiny is the most stringent standard. Under this review, a law is constitutional only if it serves a compelling state interest and is narrowly tailored to achieve that interest with the least restrictive means. Cases like Brown v. Board of Education (1954), which ended racial segregation in public schools, exemplify the application of strict scrutiny.

Intermediate Scrutiny

Used mainly for laws that classify based on gender or legitimacy, intermediate scrutiny requires the law to further an important government interest in a way that is substantially related to that interest. This standard, less rigorous than strict scrutiny, was developed in cases like Craig v. Boren (1976), which dealt with gender discrimination in alcohol laws.

Rational Basis Review

The most lenient standard, rational basis review, is applied to all other classifications. A law will pass this review if it is rationally related to a legitimate government interest. This standard gives a great deal of deference to legislative choices. A notable case is Railway Express Agency v. New York (1949), where the court upheld a city regulation under rational basis review.

Racial Discrimination and Affirmative Action

The fight against racial discrimination has been at the forefront of constitutional law, reflecting America's ongoing struggle with its racial history.

Historical Context

Initially, the Supreme Court upheld racial segregation (Plessy v. Ferguson, 1896), endorsing the "separate but equal" doctrine. However, this began to change with cases like Brown v. Board of Education, which declared state laws establishing separate public schools for black and white students unconstitutional.

Affirmative Action

In recent decades, affirmative action policies aimed at rectifying historical racial injustices have been a focal point. Key cases include Regents of the University of California v. Bakke (1978), where the Court held that race could be one of several factors in

Gender Discrimination and Gender Equality

Gender discrimination and the fight for gender equality have evolved significantly in constitutional law.

Evolution of Gender Equality

Cases like United States v. Virginia (1996), which opened the Virginia Military Institute to women, reflect the increasing recognition of gender equality. The Court has expanded the understanding of discrimination to include not just overtly discriminatory laws but also those that have a disparate impact on a particular gender.

Age Discrimination

Age discrimination in employment is a significant issue. While the Equal Protection Clause itself does not explicitly protect against age discrimination, statutes like the Age Discrimination in Employment Act (ADEA) have been enacted to protect older workers. Constitutional challenges in this area typically receive rational basis review.

Disability Discrimination

The Americans with Disabilities Act (ADA) of 1990 represents a landmark in fighting discrimination against individuals with disabilities. While the ADA is a statutory protection, the Supreme Court has addressed disability rights under the Constitution, especially in contexts like access to public services and accommodations.

Sexual Orientation and Gender Identity

One of the most significant developments in recent years has been the recognition of rights based on sexual orientation and gender identity. In cases like Obergefell v. Hodges (2015), the Supreme Court recognized same-sex marriage as a fundamental right under the Constitution. This decision and others, like Bostock v. Clayton County (2020), which extended workplace protections to LGBTQ individuals, mark a pivotal shift towards broader recognition of sexual orientation and gender identity rights.

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