Constitutional Law II
Discrimination Against Other Classes
Non-Marital Children
Indicia of Suspectness

Immutable Trait
 Discrete & Insular?
 does not carry an obvious badge

History of Discrimination
 Bastard
 Not as bad as race/sex bias ?


Impediments to political process?
Gross unfairness
 penalizing child is ineffectual and
unjust way to enforce morality
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Con Law II
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Non-Marital Exclusion – Unconst’l
Intermediate Scrutiny

Levy v. LA (1968); Glona v. Am. Guar. (1968)
 statutes denying wrongful death cases.

NJWRO v. Cahill (1973)
 denial of welfare

Gomez v. Perry (1973)
 Exemption from parental support

Trimble v. Gordon (1977)
 denial of intestate inheritance

Jiminez v. Weinberger (1974)
 Disability benefits denied unless dependency (at
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time of disability) could be established
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Non-Marital Exclusion – Const’l
Intermediate Scrutiny

Mathews v. Lucas (1976)
 Survivors’ benefits to non-marital children only where
paternity/dependency established (or by state law)

Labine v. Vincent (1971); Lalli v. Lalli (1978)
 (Important) ENDS: Avoidance of Fraud
 (Subst. Related) MEANS: Paternal inheritance limited
to children legimated during father’s lifetime
 CLOSENESS of FIT: Harder to detect fraud if child
wasn’t legitimated

Nguyen v. INS (2001)
 Citizenship for legitimate, not ill. children born abroad
Fall 2006
Con Law II
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Developmentally Disabled
City of Cleburne v. Cleburne Living Ctr (1985)

Group home for “mentally retarded” must
obtain special use permit; not req’d for others
Indicia of Suspectness


Immutable Trait?
History of Discrimin’n
 Feeble minded
 Mentally Ill


Fall 2006
Insane asylum
lunatic
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City of Cleburne v. CLC
(1985)
Indicia of Suspectness

Gross unfairness
 Real differences between this group and others
 Some unique restrictions are appropriate

Access to Political Process
 Beneficial legislation “belies a continuing antipathy
or prejudice” against the group
 At what level of gov’t should this inquiry be
undertaken?


State/Federal: anti-bias laws
Local: Cleburne’s hostility to devel. disabled
Disinclination to create new suspect classes
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Con Law II
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City of Cleburne v. CLC
(1985)
Rational Basis Test

(Legitimate) ENDS:
 Opposition by neighbors & elderly
 Harassment by neighboring school
 Public Safety (500 yr flood plain)
 City liability for residents’ actions
 Density

Enforcing bias
is never a
legitimate
state interest
(Rational) MEANS (classification):
 Developmentally disabled no less able to cope with
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flood than residents of nursing homes, hospitals, etc
 DD no more likely to create municipal liability than
frat brothers
 Not a concern for other multi-person living
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City of Cleburne v. CLC
(1985)
Standard of Review
Taken
together,
 Rational Basis ?
these factors
may lead to
Almost suspect class
Rational Basis
 Meet many, but not all, indicia of suspectness
with Bite
Almost fundamental right

Housing is not fundamental under DP or EP,
but still a “necessity of life”
Degree of Interference

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Total denial, not simply unequal allocation
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Romer v. Evans
(1996)
Facts:

basis for Colo SCt decision

Colorado Amendment 2 repeals local anti-bias
ordinances that protect GLBTs; and
Prohibits their reenactment
State antidiscrimination laws

States have power & discretion to enact
 A state’s failure to enact does not violate EP
 Therefore, a state’s repeal of anti-bias laws (return
to status quo ante) does not violate the EP clause

Creation of differential access to political power
 is discriminatory - nominally apply RB, but
 if intentionally along suspect class lines, apply SS
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Con Law II
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Romer v. Evans
(1996)
Kennedy’s Equal Protection Approach


Unnecessary to decide whether protected class
Amendment 2 fails rational basis test
State MEANS (classification):

Gays must resort to higher level for protection
 Compare, e.g., pet-protection ordinance
State ENDS:


arbitrary fit
Conserve state resources – legitimate
perfect fit
Create legal protection for private biases
 discrimination for discrimination’s sake is always an
impermissible object under EP clause (Cleburne)
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Con Law II
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Romer v. Evans
(1996)
Scalia (dissent)

If state can criminalize homosexual conduct, in
support or traditional values, can’t it impose a
lesser burden?
 Although he’s wrong that EP invalidation of 2-stage
political access is unheard of, he’s right
 that extending it to gays suggests special status
Bottom line of Romer:

Denying any group equal access to the law is
per se a denial of equal protection of the laws
 At least when based on hostility toward the group
Fall 2006
Con Law II
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Romer v. Evans
(1996)
What Happened to Bowers?

Severe scholarly criticism of interp. method
 Including narrow & overstated historical analysis
 Notion of distinct “homosexuals” not found in 18th C


J. Powell recanted
European Court of Human Rights
 Dudgeon v. United Kingdom (1983)
 Case of X, Y & Z v. United Kingdom (1997)

Powell v. State (GA S.Ct. 1998)
 Statute violates state const’l right to privacy

Fall 2006
Lawrence v. Texas (2003)
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