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Bernal v. Fainter

    Brief Fact Summary. The Petitioner, Efrem Bernal’s (Petitioner), application to become a notary public was denied solely on the basis that he was an alien.

    Synopsis of Rule of Law. A State must show that it has a compelling state interest, that is consistent with the principles supported by the United States Constitution (Constitution), when its law supports alien-based classifications.

    Facts. The Petitioner, an alien living in Texas, has worked as a paralegal and wanted to become a notary public so that he would be able to “administer oaths to [migrant farm] workers and to notarize their statements for use in civil litigation . . . .” The Petitioner’s application to become a notary public was denied by the Texas Secretary of State because he was not a citizen of the United States. The Petitioner argued that the Texas law, allowing only United States citizens the right to become notaries, violated the Constitution. The District Court ruled in favor of the Petitioner. The Court of Appeals, however, reversed the decision after its application of the rational basis test.

    Issue. Whether a statute of the State of Texas violates the Equal Protection Clause of the Fourteenth Amendment because it denies an alien the opportunity to become a notary public.

    Held. Justice Thurgood Marshall (J. Marshall). Yes. An alien-based classification under state law can only be upheld if it withstands the strict scrutiny standard of review. The judgment is reversed and the case is remanded for further proceedings.
    The State fails to show that aliens cannot become familiar with state law for purposes of carrying out their notary duties nor does the State show that aliens are incapable of being available for purposes of testifying as to work performed as a notary.
    The requirements to become a notary do not directly support the State’s concern that an alien cannot become familiar with state law. The core requirements for becoming an notary only include “fill[ing] out an application that lists one’s name and address and that answers four questions pertaining to one’s age, citizenship, residency and criminal record . . . ”
    The State fails to show that the possible unavailability of an alien notary for purposes of testimony for litigation is a compelling interest that is consistent with constitutional principles.

    Dissent. Justice William Rehnquist (J. Rehnquist). J. Rehnquist’s dissents for reasons stated in his dissenting opinion in Sugarman v. Dougall, 413 U.S. 634, 649 (1973).

    Discussion. Alien-based classifications, under state law and state action, must pass strict scrutiny.


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