C. Levels of Scrutiny

c. Factors that warrant a heightened level of scrutiny:
1. i. Fundamental Rights
2. ii. Immutable characteristics:
  1. 1. Race
  2. 2. National origin
  3. 3. Gender
  4. 4. Marital status of one’s parents (illegitimacy)
3. iii. Ability of the group to protect itself through the political process (discrete and insular minority) – political powe
  1. 1. Women have traditionally been severely underrepresented in political offices
  2. 2. Aliens do not have the ability to vote, and thus the political office cannot be trusted to represent their interests
4. iv. History of discrimination against the group
5. v. Ability to contribute to society – does the basis of discrimination against this group have any relation to the group’s ability to contribute to society?
b. Hybrid Rational Basis
1. i. Hybrid rational basis is used for laws that discriminate against homosexuals and mentally-challenged
a. Rational Basis Test
1. i. Is there a legitimate state interest?
2. ii. Is the law rationally-related to the legitimate state interest?
3. iii. Default rule for everything else
4. iv. The government’s actual purpose must not even be legitimate, so long as there is a conceivable goal that is rational
5. vi. Significant under and over-inclusiveness is tolerated
6. vii. The challenger has the burden of proof and the law will be struck down only if there is no conceivable legitimate government purpose or that the law is not rationally-related to it
7. viii. If the state cannot come up with a legitimate government interest, the court will usually come up with one for them
d. Intermediate Scrutiny
1. i. Intermediate scrutiny is used in evaluating laws involving gender discrimination, discrimination against illegitimate children, discrimination against undocumented alien children with regard to education, and regulation of commercial speech and of speech in public forums
2. ii. Is there an important state interest
3. iii. Is the law substantially related to achieving the important state interest
4. iv. We look only at the government’s actual purpose
5. v. The law must not be the least restrictive means, therefore even if there is an alternative non-discriminatory measure that could be used, the law does not necessarily fail intermediate scrutiny
e. Strict Scrutiny
1. i. Strict scrutiny is used when state legislation is, on its face, in direct conflict with the Constitution or Bill of Rights (those rights listed in the first eight amendments) → discriminates on the basis of race or national origin, alien status, or interferes with a fundamental right such as the right to vote, travel, privacy, speech, etc.
2. ii. Is the law necessary to achieve a compelling state interest?
3. iii. Is the law narrowly tailored?
  1. 1. Is the law necessary as a means to accomplishing the end?
  2. 2. Consideration of Race-neutral means?
  3. 3. Consideration of individualized determinations?
  4. 4. Consideration of temporary measures, or is the decision itself temporary?
4. iv. When the Court is applying scrutiny to a case then the over inclusiveness and under inclusiveness must be minimal

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C. Levels of Scrutiny

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