1. SUBSTANTIVE DUE PROCESS
a. Economic
i. Lochner
1. Largely abrogated (thanks FDR you legless shitbird)
2. Liberty/Property interest in economic activity, laws that substantially
burden economic liberty violate due process
3. Effectively overruled by minimum wage case
b. Privacy/Reproduction
i. Griswold v Connecticut
1. Contraception case
2. Establishes fundamental right to “martial privacy”
ii. Roe
1. 1st abortion case
2. Extends martial privacy right to abortion
3. Rules that states cannot prohibit abortion in the 1st or 2nd trimester
4. No longer the standard
iii. Planned Parenthood v Casey
1. Modern abortion standard
2. Overrules laws which create “undue burden”
3. “substantial obstacle on the woman” test
4. However State does have a legit interest in protecting fetal life once
fetus is viable (aka into the 3rd trimester)
iv. Gonzales v Carhart
1. Partial birth abortion ban upheld
2. Did not create undue burden
c. Sexual Behavior
i. Romer
1. Colorado constitutional amendment denies the alphabet people equal
protection of law
2. SCOTUS applies rational basis + review, finds that the amendment lacks
rational basis, was motivated by animus towards an unpopular group
ii. Lawrence
1. Reversal of Bowers, banned sodomy laws and recognized a right to
engage in consensual sexual behavior
2. Right to privacy from Griswold and Roe
iii. Windsor
1. DOMA Strikedown
iv. Obergefell
1. Affirmed fundamental right of marriage
2.
d. Right to Die
i. Glucksberg
1. Doctor assisted suicide NOT protected
2. Suicide is not a fundamental right
Normal review standard is rational basis unless right implicated is considered fundamental. In that case
heightened scrutiny will be applied.
2. EQUAL PROTECTION
a. Race
i. Brown v Board
ii. Loving
b. Sex
i. Craig
1. Established intermediate scrutiny for sex discrimination
2. Law forbid males from purchasing low beer but allowed females
3. Insufficiently substantial relationship between statute and intended
benefits
ii. VMI
1. Struck down male only admissions policy
2. No “exceedingly persuasive justification”
3. Justification can’t rely on stereotype
4. Providing an alternative program isn’t necessarily enough
c. Affirmative Action
i. Bakke
1. Affirmative action is permissible under some circumstances
2. However the racial quotas used by California were NOT constitutional
ii. Grutter
1. Race may be considered as a factor, but it may not be the only factor
and applicants must be analyzed on an individual basis
2. “student body diversity” is a compelling government interest
iii. Gratz
1. “points based” admission system that granted extra points based on
race unconstitutional
iv. Parents v Seattle
1. Struck down school district plans which assigned students based on race
on account of being insufficiently narrowly tailored
2. However there was a compelling interest
v. Adarand
1. All racial classifications must pass strict scrutiny
2. Programs based primarily on disadvantage rather than race would only
be rational basis
3. Govt must first pursue “race neutral” alternatives to redress
disadvantage
d. Application
i. Washington v Davis
1. “Discriminatory” effect of a law alone is not enough, must prove
discriminatory motive on part of govt
2. CONTRAST Yick Wo, where law was not facially discriminatory but had a
“disproportionate impact”, was disproportionately enforced and was
adopted with the intent to shut down Chinese laundries