Equal Protection and Fundamental Rights
The issue: Should heightened scutiny be applied when laws disproportionately burden certain classes of persons with respect to fundamental rights such as the right to vote, the right to run as a candidate, the right to marry or divorce, and the right to fairness in the criminal justice system? What constitutes a "fundamental right" for purposes of equal protection analysis?  Is education, for example, a fundamental right?
Two types of classifications cause the Court to depart from its usual rational basis scrutiny under the Equal Protection Clause: when group burdened by the classification is "suspect"  (e.g., a racial or  ethnic minority,  women,  aliens)  or when  the classification burdens  what the Court  determines to  be  a  "fundamental  right."  The Court  has  been reluctant  to  add to what  was  a relatively short  list of fundamental rights  recognized beginning in the 1960s, and specifically rejected the suggestions, for example, that welfare payments or education be labeled the sort of fundamental rights that trigger heightened scrutiny.  Heightened scutiny has been limited to cases involving substantial burdens placed on the right to vote, the right to be a candidate (access to the ballot), the right to migrate to another state, the right to marry and procreate and live as a family unit, and to fees that prevent indigents from obtaining equal access to justice  (e.g, divorcing, maintaining parental rights, and obtaining transcripts and securing legal assistance for a criminal appeal).

The right to vote is the fundamental right that has been the source of the most significant Supreme Court litigation.  The Constitution addresses voting in Article II and four subsequent amendments (the 15th, forbidding discrimination in voting on the basis "of race, color, or previous condition of servitude;" the 19th, forbidding discrimination in voting based on sex; the 24th, prohibiting "any poll tax" on a person before they can vote; and the 26th, granting the right to vote to all citizens over the age of 18).  The Court has chosen to also strictly scrutinize restrictions on voting other than those specifically prohibited by the Constitution because, in its words, the right to vote "is preservative of other basic civil and political rights."  It should be noted, however, that "strict scutiny" in the fundamental rights cases tends to be, in actual practice a little less
strict than in suspect classifications cases.  The Court, for example, has upheld reasonable (e.g., 50-day) residency restrictions on voting and state laws denying the vote to convicted felons, as well as age and citizenship requirements. 

Kramer v Union Free School District (1969) is an example of a case in which strict scrutiny resulted in the invalidation of a state voting restriction.  The Court found for a bachelor living with his parents, who challenged a N.Y. law that limited voting in school board elections to persons who either owned or leased property in the district or had children attending schools in the district.  The Court found the law was not  sufficiently narrowly tailored to serve its interest of limiting voting to interested persons.

Reynolds v Sims (1964) considered a challenge to the malapportionment of the Alabama legislature.  The Court invalidated Alabama's apportionment scheme, which gave voters in rural areas disproportionately more power (more representatives per capita) than urban voters.  Writing for the Court, Chief Justice Warren declared, "Legislators represent people, not trees or acres," and that the "Equal Protection Clause requires that seats in both houses of a bicameral legislature must be apportioned on a population basis."

Easily the most controversial decision involving the Equal Protection Clause was Bush v Gore, the Supreme Court decision that ended the  Florida recount and effectively decided the presidential election of 2000 in favor of George W. Bush.  Although the vote to stop the recount was 5 to 4,  seven justices found an equal protection problem with Florida's using different criteria to measure voter's intent in different counties (what to do about hanging chads and dimpled chads, for example--remember?).  Two of the justices (Breyer and Souter), however, would have sent the matter back to Florida with instructions to develop a statewide standard for determining the intent of voters--but five justices believed it was too late for that.  Many critics of Bush v Gore suggest that varying standards for measuring the intent of voters can be found in virtually every state in the country, and the decision presents many opportunities for future challenges to results in close elections.

M. L. B. v S. L. J. (1996) is illustrative of cases that have applied heightened scrutiny to financial roadblocks imposed by states that stand in the way of indigents getting equal access to justice with respect to issues that substantially affect liberty or family life.  In M. L. B., the Court strikes down a Mississippi law that prevented an indigent mother from appealing a termination of parental rights order because she could not pay a $2000 transcript-processing fee.  The deprivation involved (a complete severing of parent-child bonds), Justice Ginsburg wrote for the Court, is "devastating" and heightened scrutiny is justified.  The modest cost savings to the state resulting from the mandatory fee is not a sufficiently compelling reason to impose the burden that Mississippi's law did.

San Antonio Independent School District v Rodriquez (1973) made clear the Court's desire to confine strict scrutiny to cases involving rights that are either explicitly or implicitly guaranteed by the Constitution.  It will NOT be enough, the Court said in its 5 to 4 decision, that a right is very important or has a clear nexus to the exercise of constitutional rights.  In upholding a Texas state financing scheme that left poor school districts with substantially less money to fund education than richer districts, the Court said that however important education might be, and however helpful education might be to voting or the exercise of First Amendment rights, it is not a "fundamental right" of the sort that triggers strict scrutiny under the Equal Protection Clause.  Applying rational basis scrutiny, the law was found to support the state's interest in decentralized education.

Reynolds v Sims (1964)
Kramer v Union Free School District (1969)
Bush v Gore (2000)
M. L. B. v S. L. J. (1996)
San Antonio Ind. Sch'l Dis. v Rodriquez (1973)



1. Could a state constitutionally choose some other method than elections of choosing its governor or legislators?  (By lot, for example?)
2.  If the federal government can have one legislative body (the Senate) apportioned on a basis other than population, why can't states do the same?  For example, why couldn't a state senate have one senator from each county?
3.  Do you think a law prohibiting ex-felons from voting should have survived strict scrutiny?  Should one mistake at age 19 (for example a conviction for selling drugs) result in that person never again being able to participate in the state's electoral process?  (Note that some states, such as Vermont, permit incarcerated felons to cast ballots in prison.)
4.  The population in different legislative districts cannot be made precisely equal, and populations keep changing.  How close in population should districts have to be to satisfy the demands of the Equal Protection Clause?
5.  How serious in the injury suffered by some Florida voters that was the basis for the Court's conclusion that the recount scheme violated the Equal Protection Clause?  Does it compare to the injury suffered in the "one person, one vote" cases involving apportionment?
6. Malapportionment distorts the political processes in a way making a legislative remedy of the problem unlikely, thus providing an argument for strict judicial scrutiny. Can the same be said about the problem identified in Bush--that it is the sort of invidious discrimination that will never be corrected without judicial intervention?

7.  How do you explain the fact that the five most conservative members of the Court--the five most likely to take states' rights stances in most cases-- were the five most willing to find a violation of federal law in Bush v Gore?
8.  Do you agree with the assertion that Bush v Gore was "pure politics" and not a reflection of judicial principles? Why or why not?
9.  Judge Richard Posner, in his Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, offers an interesting argument in support of the Court's decision in Bush v Gore.  Posner supports the decision because it avoided the chaos of a prolonged unresolved deadlock.  Do you agree that that reason is enough to justify the decision?
10.  Should the Court in San Antonio v Rodriquez have recognized education as a fundamental right?  Would the result have been different if Texas simply refused to fund any public education at all? 
11.  How does one square Rodriquez with other cases that found rights not explicitly guaranteed by the Constitution (the right to vote in state elections, the right not to have to pay hefty fees to appear as a candidate on a ballot, the right to a free transcript in a criminal appeal, the right to travel from state to state) to be "fundamental," and thus triggering strict scrutiny?
12.  Do you agree with the majority that the Texas school financing scheme furthers a significant state interest?
13.  Interestingly, the Texas Supreme Court subsequently ruled that the disparities in the state's funding plan for schools violated the Texas Constitution.  A number of other state supreme courts reached similar conclusions with respect to their own state laws that financed public schools in large part through the use of local property taxes.
14.  Fees for criminal appeals, divorce, paternity tests, and transcripts for appeal of termination of parental rights orders (see M. L. B.) have all been found to violate the Fourteenth Amendment, even though the costs imposed by the state would fall on all alike, whether rich or poor, black or white.  Should such neutral laws be found to violate equal protection principles, or would a due process analysis seem more appropriate?

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