[SOUND] I want to conclude my discussion of equal protection by talking about other kinds of discrimination that have been considered by the Supreme Court. Race, sex discrimination, are certainly the most important areas, but they're not the only areas. Another area of discrimination considered by the Supreme Court is when non-citizens are subjected to disadvantages compared to citizens. This has been referred to by the Supreme Court as Alienage Classifications. Takes the face, least it used to be that non-citizens were referred to as aliens. It's a phrase that's less in vogue, probably less politically correct today. The Supreme Court has said that generally discrimination against non-citizens has to meet strict scrutiny. It's credit the same way as race discrimination. The Supreme Court here has focused especially on the political powerlessness of non-citizens. Non-citizens don't vote, non-citizens are politically powerless in that sense. Also the court has said there's a history of discrimination against non-citizens. And so there have been a number of Supreme Court cases where laws discriminating against non-citizens have been subjected to strict scrutiny and invalidated on that basis. As an example a state had a law that said that only United States citizens could receive welfare benefits in the state. The Supreme Court used their scrutiny and declared the law unconstitutional. Another example, a state had a law that said, only the United States citizens could have civil service jobs in the states. The Supreme Court used strict scrutiny, declared the law unconstitutional. One more illustration, state had a law that said only United States citizens could be admitted to the bar to practice law in the state. Supreme Court used strict scrutiny and declared the law unconstitutional. What's interesting though about discrimination against non citizens, is that there are several exceptions where the court is much more deferential to the government. A key example here is that the Supreme Court has said that discrimination against non-citizens, that is related to self government and the democratic process will be allowed, so long as it meets a rational basis test. When I say discrimination against non-citizens that relates to self-government and the democratic process, I mean things like voting, serving on a jury. The Supreme Court long has said that the government can reserve such privileges for citizens alone. There is, then, a case before the Supreme Court that involved a state law that said, in order to be a police officer in the state, a person had to be a United States citizen. The Supreme Court said, police officers are integral to self-government. They enforce the laws that are the product of the democratic process. The Court used only rational basis review and upheld the law. Then there was the case before the Supreme Court that involved the state law that said in order for someone to be in elementary or high school teacher in the state, person had to be a United States citizen. A high school french teacher who's a citizen of France brought a challenge. She lost. The Supreme Court said teachers are integral to self-government because they're responsible for inculcating democratic values in our youth. The Court used only rational basis field to uphold the law. Then there was a case coming out of Texas which had a state law that said in order to be a probation office in the state, person has to be a United States citizen. The Supreme Court said probation officers are like police officers, only rational basis review and the state wins. Finally there was a case before the Supreme Court which stated a law that said, in order for someone to be a notary public in the state, person has to be a United States citizen. The Supreme Court said, notary publics don't have anything to do with self-government and the democratic process. They just put those anachronistic seals on things. So as to that the Court said strict scrutiny, and declared it unconstitutional. Another exception to strict scrutiny, when it comes to discrimination against non-citizens Is where it's a federal statute. The Supreme Court has said that Congress has plenary, broad power to regulate immigration. And if Congress wants to discriminate against non-citizens, then it's assumed that it's part of regulating immigration. So here, If Congress wants to say that non-citizens don't get the same benefits, same welfare, or other government programs as citizens, that's going to be allowed so long as it meets rational basis review. If it's state and local governments that do it, now that's strict scrutiny, but Congress gets deference. Well, the question probably arises in your mind what about undocumented immigrants? How are they treated under Equal Protection? It might surprise you to know there's only one Supreme Court case in all of American history dealing with undocumented immigrants. And that's a case called Plyler vs Doe from 1982. Texas had a law that said that children of citizens and children of documented aliens will get a free public education and children of undocument immigrants would have to pay for their public education. The Supreme Court declared this unconstitutional. The Supreme Court said the equal protection clause refers to persons not to citizens. If you'll look at the Section 1 of the 14th amendment, it says no state shall deny any citizen of the privilege and immunities of the United States citizenship. But by contrast it says, no state shall deny any person of equal protection of the laws, or no state shall deprive any person of life, liberty or property without due process of law. And the court said, this then is about persons. And the court said, children don't make the choice to be here. The court said education is so crucial for their future, and so the court declared the Texas law unconstitutional. There's only one other area where the Supreme Court has approved an immediate or strict scrutiny for discrimination under equal protection. And that's for Discrimination Against Non-marital Children. Discrimination against what used to be referred to as illegitimate children. Children's parents were not married. Now that phrase is no longer politically correct, because every child is a legitimate child. But with regard to discrimination against non-marital children, the Supreme Court has made it clear that intermediate scrutiny is to be used. Here is an example. Imagine that a state has a law that says that only children of marital parents can inherit from their fathers. Childrens whose parents were not married could not inherit from their fathers. Or to put it another way, all marital children could inherit, no non-marital children could inherit. The Supreme Court declared that unconstitutional. The court used intermediate scrutiny. The court said, with regard to discrimination against non-marital children, that it's not their choice that their parents weren't married. It's immutable in a sense that they can't cure it, that there is a long history of discrimination against non-marital children, so this is appropriate. Now, it might surprise you to know that the only places where the Supreme Court has approved discrimination that gets heightened scrutiny, strict scrutiny, intermediate scrutiny is race or national origin, sex, discrimination against non-citizens, and discrimination again non-marital children. To this point in American history, all other types of discrimination get only rational basis review. And the government overwhelmingly wins under rational basis review. Let me give you some examples of this. One important example is age discrimination. Might surprise you to note here that never in American history has the Supreme Court declared age discrimination, any law, to be unconstitutional. Now, there is a federal statute that prohibits age discrimination in employment called the Age Discrimination Employment Act. But whenever age discrimination has been challenged under the Constitution the government has won. There have been a couple of cases that have challenged government laws that impose mandatory retirement age, such as with regard to police officers or state department consular officials. The Supreme Court used rational basis review and said that that age discrimination didn't violate equal protection. Another kind of discrimination where the Court has said it's only rational basis review is disability discrimination. Now again, here are the statutes, laws like the Americans with Disabilities Act. But when government discrimination on the basis of disability is challenged under equal protection, the Court has said only rational basis review. The initial and leading case here was City of Cleburne versus Cleburne Living Center. A town in Texas had a zoning ordinance that prevented a home for the mentally disabled from being located in its midst. The Supreme Court expressly held, and later reaffirmed, only rational basis review. Interestingly though, the court declared this law unconstitutional, one of the very few instances where the government has ever lost under rational basis review. Another example of the type of discrimination that gets only rational basis review, is wealth discrimination, discrimination against the poor. For over 45 years now, the Supreme Court and the language of Constitutional law has said that poverty is not a suspect classification. Discriminating against the poor only has to meet rational basis review. It only means rationally related to legitimate government interests. And so there's not a single instance in the last 45 years, where the Supreme Court has found discrimination against the poor to violate equal protection. I think the most important case here is one that I've already talked about, San Antonio Board of Education versus Rodriguez in 1973. As I mentioned, this was a challenge to Texas relying heavily on the local property tax to fund public schools. The result was that poorer areas get taxed at a higher rate, still had little to spend on education. Wealthier areas could tax at a low rate and had a great deal to spend on education. This was discrimination against the poor, but the Supreme Court in a 5-4 decision upheld this as constitutional. As I mentioned earlier, the Court said there's no fundamental right to education under the Constitution. But the Court also said that poverty is not a suspect classification. Discrimination against the poor, only rational basis review. There is only one other type of discrimination that the United States Supreme Court has considered under equal protection. In that sexual orientation discrimination. To this point the court is never expressly aproved more than rational basis review for sexual orientation discrimination but the Court has declared unconstitutional several laws that do discriminate sexual orientation. There have actually been only three Supreme Court cases with regard to sexual orientation discrimination so it's worth talking about them individually. The first was Romer versus Evans in 1996. Colorado voters passed an initiative, Amendment Two, that repealed all laws in the state protecting gays and lesbians from discrimination and that prohibited the enacting of any new laws protecting gays and lesbians from discrimination. The Supreme Court declared this unconstitutional. Justice Anthony Kennedy wrote for the court. He said rational basis review for sexual orientation discrimination but he said the Colorado initiave didn't even meet that defferential standard. He said, the Colorado initiative was based on animus, hostility to gays and lesbians. He said, animus can never be a legitimate government purpose. He said, every other group in Colorado can use the political process. If journalists wanted to benefit they could go to the legislature. If law professors wanted to benefit they could go to the legislature. The only group that could not do so were gays and lesbians, and the Court said that violated equal protection. But it's notable that the Court used only rational basis review. The Court next dealt with sexual orientation discrimination under equal protection in 2013, in United States versus Windsor. Windsor involved Section Three of the Federal Defense of Marriage Act. Federal law that said for purpose of federal benefits and federal law, marriage was defined as as between a man and a woman. The Supreme Court in a 5-4 decision declared this unconstitutional. The Supreme Court said that the law was based on animus against gays and lesbians. Justice Kennedy wrote, joined by Justices Ginsberg, Breyer, Soto, and Kagan. Justice Kennedy quoted from the legislative history of the Federal Defense of Marriage Act. It said that its purpose was to condemn homosexual activity and for support for traditional marriage. The Supreme Court said, that's not a legitimate government purpose. Now, the court didn't say the level of scrutiny, but is clearly saying it wouldn't even meet national basis review. The only other case where the Court has dealt with sexual orientation discrimination under equal protection was Obergefell versus Hodges in June of 2015. It's a case I've already discussed. It involves a challenge to laws in Kentucky, Michigan, Ohio, and Tennessee that prohibited same sex marriage. The Supreme Court 5-4, declared this unconstitutional. Same 5 justices in the majority as United States versus Windsor 2 years earlier. Justice Kennedy wrote for the court. Justice Kennedy's opinion as I've discussed, primarily focused on the right to marry, safeguarded under the liberty of the due process clause. But Justice Kennedy also said, laws that prohibit same sex marriage deny equal protection to gays and lesbians. If an individual's heterosexual he or she could get married, but if he or she was homosexual he or she cannot get married. And the courts said that violates equal protection. Like in Windsor, the Court didn't indicate the level of scrutiny that it was using. Nonetheless, striking down the law. Why didn't the court indicate the level of scrutiny? Maybe it's because the five justices in the majority couldn't agree to that. Some perhaps wanting strict scrutiny, some intermediate scrutiny, some rational basis review. Or maybe the court didn't indicate the level of scrutiny because it wanted to send a message that under any approach, laws that prohibit same sex marriage are unconstitutional. So I've now covered you for you all of the areas where the Supreme Court has considered the level of scrutiny. I've considered all the areas under the law of equal protection.
