[SOUND] The eight major part in my lecture focus on equal protection. If you look at the first 7 articles of the constitution, there's no mention of equality. Even if you continue your examination and look at the Bill of Rights, the first ten amendments of the Constitution. There's no mention of equal protection. This should not be surprising, the Constitution was hardly a document about equality. Most obviously of course, the institution of slavery was very much protected by the Constitution. As Thurgood Marshall said, institutionalized by the Constitution. The word slavery itself doesn't appear in the Constitution. But there's no doubt that the Constitution protected that institution. Article I, for example, talks about how representation in the House of Representatives would be allocated. And it's based on counting each free person and three-fifths of all others. Who are the others, who counted only as three-fifths of a person? Slaves. The Constitution in Article I, Section 9 prohibits Congress from banning importation of individuals until 1808. Now though it doesn't mention slavery, what this specifically was about was that Congress cannot ban importation of additional slaves for 20 years. In fact, if you look at Article V of the Constitution about the amendment process. One of the few provisions in the entire document that cannot be amended by Congress is Article I, Section 9, limiting the ability to ban importation of slaves for 20 years. So no issue was more divisive at the Constitutional Convention or the United States before the Civil War than that of slavery and the framers compromised. They protected the ability to bring in additional slaves for 20 years, but then left it up to congress to regulate the slave trade. Article IV, Section 3 of the Constitution contains what is known as the fugitive slave clause. It says that if a slave escapes from a slave state to a free state, the slave must be returned to his or her owner. The Supreme Court in Prigg versus Pennsylvania said, the Constitution never would have been ratified without the fugitive slave clause. Now it wasn't only with regard to slavery and race, that the constitution was unequal. Women had no constitutional rights. In fact, married women were prohibited by law from entering into contracts. From being able to engage in their own business transactions. Women did not get the right to vote until 1920, when the 19th amendment was adopted. So for all of these reasons, it's not surprising that equality is nowhere mentioned in the text of the constitution itself. It wasn't until the 14th amendment was added to the constitution in 1868, that we come to the mention of equal protection laws. The 14th Amendment says, no state shall deny any person of equal protection laws. The 14th Amendment was all about regulating state and local governments. Very much about applying the Constitution to state and local governments. So there's an interesting question, how is equal protection applied to the federal government? We know equal protection applies to state and local governments through the 14th Amendment. But what about the Federal government? To this day, there is no clause in the constitution that says that the United States government cannot deny people equal protection of the laws. The Supreme Court addressed this in 1954, in a case called Bowling versus Sharpe. Bowling versus Sharpe was a challenge to a Washington, DC ordinance that segregated the District of Columbia public schools. In fact, the same Congress that ratified the 14th Amendment also voted to segregate the District of Columbia public schools. And a challenge was brought to this, and the case came to the Supreme Court at the same time, is the most famous Brown versus the Board of Education. And the argument was made that the DC ordinance that required school segregation was unconstitutional. The Supreme Court there said that equal protection supplied to the federal government to the due process clause of the fifth amendment. According to a book by Bernard Schwartz, decision by the crave. When Chief Justice Earl Warren first wrote his opinion about Bowling versus Sharpe, it was at the segregation that the District of Columbia public schools violated the 14th amendment. According to Professor Schwartz a law clerk went up to Chief Justice Warren and said, you can't have the District of Columbia violating the 14th amendment. The 14th amendment applies only to state local government, doesn't apply to the federal government. According to Schwartz, Chief Justice Warren responded quickly, in an offhand way, well then apply equal protection to the federal government through the fifth amendment. And that's been the law ever since 1954, equal protection applies to the federal government the due process clause of the fifth amendment. Equal protection applies to state and local governments through the 14th amendment. Substantively, nothing turns on this distinction. The law of equal protection is the same whether it's a claim that the federal government, or a claim that state and local governments have denied equal protection. But it is important to note that equal protection applies to local government through the 14th Amendment, to the federal government through the 5th Amendment. It's also important at the outset to identify the analytical framework that's used to guard the equal protection. I think that all equal protection issues can be broken down into three steps. The first step is always to identify, what is the classification? How is the government drawing a distinction among people? Is it based on height and weight? Based on sex? Based on race? That is the crucial question in many cases. How is the government drawing a distinction among people? The second question to ask is what is the level of scrutiny? I've already defined the levels of scrutiny for you. The level of scrutiny here is how suspicious is the court of the government? If the court is inherently suspicious of the government then that's going to get strict scrutiny. But if the court's trustful of the government, it's only going to be rational basis review. So once the classification is identified, it's then possible to see what's the level of scrutiny. And then the final question is does the law meet the level of scrutiny? So to take an example, State has a law that prohibits same sex marriage. Gays and lesbians bring a challenge on the basis of this sexual orientation discrimination. Heterosexuals can marry, but not homosexuals. The court would say first, what is the classification? The classification is sexual orientation discrimination, then what's the level of scrutiny. We don't know the level of scrutiny the court hasn't said. At the very least the government has to have a legitimate purpose, but if it's heightened scrutiny it would need to be an important or even a compelling purpose. Having identified the level of scrutiny, the question then is well, is the level of scrutiny met? Is the government law constitutional? And the Supreme Court and a couple of cases, United States versus Windsor in 2013, overfilled visages in 2015 made clear that government laws that prohibit same sex marriage, deny equal protection to gays and lesbians. Following exactly the three step analytical approach that I suggested. It's an approach that can always be used with a guard to equal protection. Well having talked about the constitutional provisions regarding legal protections. And having discussed the analytical framework, let me next talk about the rational basis test. All laws adopted by the government that treat some people differently from others must at least meet rational basis review. Rational basis review says that a law will be upheld so long as it is rationally related to a legitimate government purpose. As I said earlier, in discussing the levels of scrutiny, the purpose only has to be something that's legitimate for the government to do. The means selected just has to be a reasonable, a rational way of achieving the end. As I said, rational basis review is tremendously deferential to the government, the government usually wins under rational basis review. A couple of questions we're thinking about with regard to rational basis review, how is the purpose of a law determined? Does the court look only to the actual purpose of legislator, or the conceivable legitimate government purpose enough? The supreme court is repeatedly help that the irrational bases review is a conceivable legitimate interest is all that's required. In other words, it doesn't matter why the government adopted the law. So long as the lawyers to the government are creative, as long as they can articulate some legitimate purpose, that's good enough. Is that too deferential? Since 1937, there have been fewer decisions than I can count on the fingers of one hand, that have struck down laws for violating rational basis review. Should there be more exacting review than what the court has done? All that's required is inconceivable legitimate purpose. The other question with regards to rational basis review is what's enough to be a legitimate purpose? And the basic answer here which reflects the deference of the government, anything that's permissible for the government to do. Is a rational basis, a legitimate government interest. And so the Supreme Court has made it clear, that so long as it's not a Constitutionally forbidden end, it would be considered legitimate. Now at the same time the court has made clear, the animus hostility to a particular group is not sufficient for a legitimate government interest. This is the holding of a 1996 Supreme Court case, Romer versus Evans. Colorado voters passed an initiative repealing all laws in the state protecting gays and lesbians from discrimination. And prohibiting the enactment of any new laws protecting gays and lesbians form discrimination. A challenge was brought to this initiative. The Supreme Court declared it unconstitutional, the Supreme Court said that the initiative was based on animus. Hostility to gays and lesbians, the animus is never sufficient basis for government discrimination. So while the government has enormous leeway under rational basis review, any conceivable legitimate interest, still there is a limit. The government has to have a permissible purpose. It has to be a conceivable, permissible purpose. If the purpose is just hostility, animus to a particular group, that's not a sufficient, conceivable, legitimate purpose. So when it comes to rational basis review, there's always these questions ask. What it comes down to, is the government's action rationally related to a legitimate government purpose? So long as the answer to that is yes, the law will need to meet rational basis review. And rational basis review as I said, is the minimum. It's the floor, all government discrimination has to meet at least rational basis review.
