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  • Ordinary “mere-rationality” review: At the easiest-to-satisfy end of the spectrum, we have the “mere-rationality” standard. This standard applies to all classifications that are not based on a “suspect” or “semi-suspect” classification (i.e., that do not involve race, national origin, alienage, gender or legitimacy) and do not impair a “fundamental right” (i.e., do not impair the right to vote, access the courts or migrate interstate). Under this standard, the classification will be upheld so long as it is conceivable that the classification bears a rational relationship to a legitimate governmental objective. Almost every classification survives this easy review.
    • Economic regulation: Almost every economic and tax classification is reviewed under this easy standard.
    • Suspect classifications: When a classification involves a suspect class (race, national origin and, for some purposes, alienage), here are the key features of how courts do their review:
      • Purposeful: Strict scrutiny will only be applied where the differential treatment of the class is intentional on the part of the government. If the government enacts a statute or regulation that merely has the unintended incidental effect of burdening, say, blacks worse than whites, the Court will not use strict scrutiny.
      • Strict equals fatal: Once the Court decides that a suspect classification is involved and that strict scrutiny must be used, the scrutiny is almost always fatal to the classification scheme. For instance, only one purposeful racial or ethnic classification has survived strict scrutiny by the Supreme Court since 1944.
      • Segregation: The clearest example of a classification involving a suspect class and thus requiring strict scrutiny is segregation, the maintenance of physical separation between the races. Official, intentional segregation based on race or national origin is a violation of the Equal Protection Clause.
    • Race-conscious affirmative action: Government programs that attempt to assist racial or ethnic minorities (i.e., affirmative action programs), and that do so in an explicitly race- or ethnically-conscious way, are strictly scrutinized just the same as those that purposefully disadvantage minorities.
    • Gender: Sex-based classifications get middle-level review. If government intentionally classifies on the basis of sex, government must show that it is pursuing an important objective, and that the sex-based classification scheme is substantially related to that objective.
      • Benign as well as invidious: The same standard of review is used whether the sex-based classification is “invidious” (intended to harm women) or “benign” (intended to help women, or even intended to redress past discrimination against them).
    • Illegitimacy: Classifications disadvantaging illegitimate children are “semi-suspect” and therefore get middle-level review.
    • Alienage: Alienage classifications are subjected either to strict scrutiny or to mere-rationality review, depending on the circumstances.
      • General rule: Usually, discrimination against aliens is subject to strict scrutiny.

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