Scrutiny Categorization Chart 553b5

SCRUTINY TESTS AND CATEGORIZATIONS (FOR EQUAL PROTECTION & SUBSTANTIVE DUE PROCESS) 1. WHAT IS THE CLASSIFICATION? a) The classification is on the face of the law or b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact

2. WHAT IS THE LEVEL OF SCRUTINY?

Strict Scrutiny Burden on State

Intermediate Scrutiny Burden on State

Rational Basis Burden on Plaintiff

Law must be necessary to achieve a compelling government purpose.

Law must be substantially related to an important government purpose.

Law must be rationally related to a legitimate government interest

SUSPECT CLASSES  Race  National Origin  Alienage –generally

(Gender) Government must show exceedingly persuasive justification for the discrimination

NON-SUSPECT CLASSIFICATIONS  Alienage classifications related to self-government and democratic process  Congressional regulation of aliens  Age  Handicap  Wealth/Poverty  All other classifications

FUNDAMENTAL RIGHTS  Travel  Parenting  Marriage  Procreation o Abortion = undue burden test  Voting  Gun Ownership  Privacy  Religion

CLASSES  Gender  Illegitimacy  Undocumented Alien Children NON-FUNDAMENTAL RIGHTS  Right to Refuse Medical Treatment (possibly)  Homosexual Activity Restrictions

ALL OTHER NON-FUNDAMENTAL RIGHTS

3. DOES THE LAW MEET THE LEVEL OF SCRUTINY?

Note: This chart is designed as teaching tool for the Washburn University School of Law Bar Services Program. Though it is helpful for MBE bar exam study, it does not include a completely detailed and exhaustive list of due process issues, standards, and violations that may exist in actual practice.

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