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CHAPTER 7

Equal Protection: Fundamental Rights

§7.1 INTRODUCTION AND OVERVIEW

In the previous chapter, we examined application of the Equal Protection Clause in situations that call for mere rational basis review and in situations where the basis of classification was “suspect,” “quasi-suspect,” or otherwise such as to call for some form of heightened scrutiny. We turn now to an examination of the Equal Protection Clause in settings where the basis of the classification is unproblematic, but where the law discriminates in such a way as to impinge on a fundamental constitutional right. After exploring this fundamental-rights branch of the equal protection doctrine, this chapter will conclude by looking briefly at an alternative approach to equal protection that Justice Thurgood Marshall advocated as a replacement for the Court's three-tier model that we have been discussing.

§7.2 EQUAL PROTECTION AND FUNDAMENTAL RIGHTS

Laws that classify in ways that infringe on the exercise of a fundamental constitutional right will be upheld only if they survive the same strict scrutiny test that is applied to suspect classifications. In other words, the defender of the law must demonstrate that the discrimination is narrowly tailored to serve a compelling governmental interest. See §6.4.2.

Example 7-A

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