SUNDAYS AT JASA SPRING 2025
SEMESTER
Equal Protection And The Supreme Court
Mondays at 10:00 a.m. – 11:15 a.m.
Virtual Class on Zoom Beginning March 3, 2025
Instructor: Leora Harpaz
Email - lharpaz@lharpaz.com
Instructor Bio:
Leora Harpaz is an emeritus professor of constitutional
law at Western New England University School of Law as
well as founder of the annual Supreme Court Conference
where she was a speaker for over 25 years. Since receiving
emeritus status, she has been an instructor in several
senior learner programs and taught undergraduate law
courses in the political science department at Hunter
College. She received her B.A. from Stony Brook University
and has law degrees from both Boston University and New
York University.
Suggestions:
I welcome your suggestions for other
subjects you’d like to hear about.
Please use the following link if you
would like to make suggestions for
topics you would like covered in
upcoming classes:
http://www.lharpaz.com/ContinuingEd/JASA/suggestions/
Class 6 - April 7, 2025
Characteristics
of a Suspect
Class
The following
are
characteristics
that the
Supreme Court
has identified
in various
cases as the
traits that
are associated
with a suspect
class. While
it is not
necessary for
each trait to
be present for
a class to be
considered
suspect, the
absence of any
of the listed
traits might
cause the
Supreme Court
to refuse to
declare the
class to be
suspect.
However, the
absence of a
few of the
listed traits
would not be
fatal to a
class being
considered
quasi suspect
as in the case
of gender.
(1) The group
discriminated
against has
suffered from
a history of
past
discrimination
in their
treatment by
the legal
system;
(2) The trait
that is the
basis for the
discrimination
generally
bears no
relationship
to a person's
ability to
contribute to
society (and
is likely
based on
stereotypical
thinking about
the abilities
of the class
rather than
real
differences);
(3) The trait
shared by the
members of the
class is often
singled out to
reinforce
prejudice
against the
group or label
the group as
inferior;
(4) The group
discriminated
against is
relatively
politically
powerless by
its numbers in
the
population, by
under-representation
in government,
or by its
inability to
influence the
legislative
agenda;
(5) The trait
shared by the
group is
central to
personal
identity
(previously
referred to as
an immutable
characteristic)
(6) The class
is a "discrete
and insular
minority"
based on
whether the
trait is a
distinct
trait, whether
the group that
shares the
trait is a
minority in
the
population,
and whether
the group is
"insular" in
the sense of
often living
in a separate
community or
interacting
most
frequently
with other
members of the
group; and
(7) The trait
is visible.
Class 5 - March 31, 2025
Bradwell
v. State of Illinois -
Justice Bradley's
Concurring Opinion:
“It certainly
cannot be affirmed, as
an historical fact, that
this has ever been
established as one of
the fundamental
privileges and
immunities of the sex.
On the contrary, the
civil law, as well as
nature herself, has
always recognized a wide
difference in the
respective spheres and
destinies of man and
woman. Man is, or should
be, woman's protector
and defender. The
natural and proper
timidity and delicacy
which belongs to the
female sex evidently
unfits it for many of
the occupations of civil
life. The Constitution
of the family
organization, which is
founded in the divine
ordinance as well as in
the nature of things,
indicates the domestic
sphere as that which
properly belongs to the
domain and functions of
womanhood. The harmony,
not to say identity, of
interest and views which
belong, or should
belong, to the family
institution is repugnant
to the idea of a woman
adopting a distinct and
independent career from
that of her husband. So
firmly fixed was this
sentiment in the
founders of the common
law that it became a
maxim of that system of
jurisprudence that a
woman had no legal
existence separate from
her husband, who was
regarded as her head and
representative in the
social state, and,
notwithstanding some
recent modifications of
this civil status, many
of the special rules of
law flowing from and
dependent upon this
cardinal principle still
exist in full force in
most states. One of
these is that a married
woman is incapable,
without her husband's
consent, of making
contracts which shall be
binding on her or him.
This very incapacity was
one circumstance which
the Supreme Court of
Illinois deemed
important in rendering a
married woman
incompetent fully to
perform the duties and
trusts that belong to
the office of an
attorney and counselor.
It is true that
many women are unmarried
and not affected by any
of the duties,
complications, and
incapacities arising out
of the married state,
but these are exceptions
to the general rule. The
paramount destiny and
mission of woman are to
fulfill the noble and
benign offices of wife
and mother. This is the
law of the Creator. And
the rules of civil
society must be adapted
to the general
constitution of things,
and cannot be based upon
exceptional cases."
Amendment
XIX:
The right of
citizens of the
United States to
vote shall not be
denied or abridged
by the United States
or by any state on
account of sex.
Congress shall
have power to
enforce this article
by appropriate
legislation.
Muller
v. Oregon
(1908):
“That
woman's physical
structure and
the performance
of maternal
functions place
her at a
disadvantage in
the struggle for
subsistence is
obvious. This is
especially true
when the burdens
of motherhood
are upon her.
Even when they
are not, by
abundant
testimony of the
medical
fraternity,
continuance for
a long time on
her feet at
work, repeating
this from day to
day, tends to
injurious
effects upon the
body, and, as
healthy mothers
are essential to
vigorous
offspring, the
physical
wellbeing of
woman becomes an
object of public
interest and
care in order to
preserve the
strength and
vigor of the
race.”
Still
again, history
discloses the
fact that woman
has always been
dependent upon
man. He
established his
control at the
outset by
superior
physical
strength, and
this control in
various forms,
with diminishing
intensity, has
continued to the
present. As
minors, though
not to the same
extent, she has
been looked upon
in the courts as
needing especial
care that her
rights may be
preserved.”
Goesaert
v. Cleary
(1948):
Since
bartending by
women may, in
the allowable
legislative
judgment, give
rise to moral
and social
problems
against which
it may devise
preventive
measures, the
legislature
need not go to
the full
length of
prohibition if
it believes
that, as to a
defined group
of females,
other factors
are operating
which either
eliminate or
reduce the
moral and
social
problems
otherwise
calling for
prohibition.
Michigan
evidently
believes that
the oversight
assured
through
ownership of a
bar by a
barmaid's
husband or
father
minimizes
hazards that
may confront a
barmaid
without such
protecting
oversight.
This Court is
certainly not
in a position
to gainsay
such belief by
the Michigan
legislature.
If it is
entertainable,
as we think it
is, Michigan
has not
violated its
duty to afford
equal
protection of
its laws. We
cannot
cross-examine,
either
actually or
argumentatively,
the mind of
Michigan
legislators,
nor question
their motives.
Since the line
they have
drawn is not
without a
basis in
reason, we
cannot give
ear to the
suggestion
that the real
impulse behind
this
legislation
was an
unchivalrous
desire of male
bartenders to
try to
monopolize the
calling.
Hoyt v.
Florida
(1961):
"Despite
the
enlightened
emancipation
of women from
the
restrictions
and
protections of
bygone years,
and their
entry into
many parts of
community life
formerly
considered to
be reserved to
men, woman is
still regarded
as the center
of home and
family life.
We cannot say
that it is
constitutionally
impermissible
for a State,
acting in
pursuit of the
general
welfare, to
conclude that
a woman should
be relieved
from the civic
duty of jury
service unless
she herself
determines
that such
service is
consistent
with her own
special
responsibilities.”
Class 4 - March 24, 2025
Picture of Abigail Fisher with her lawyer in
2012 - https://www.bbc.com/news/world-us-canada-36928990
Picture of Abigail Fisher with Edward Blum in
2015 - https://daily.jstor.org/case-abigail-fisher-history-affirmative-action-cases/
Class 3 - March 17, 2025
No material posted for class 3
Class 2 - March 10, 2025
Pictures of segregated facilities:
water fountain - http://images.slideplayer.com/1/239553/slides/slide_50.jpg
bus station waiting room - https://www.thenation.com/article/archive/steve-luxenberg-separate-plessy-ferguson-book-review/
movie theater -
https://upload.wikimedia.org/wikipedia/commons/e/e7/Rex_theatre.jpg
laundry - http://i.ytimg.com/vi/c-7eNRB2_0Q/hqdefault.jpg
Class 1 - March 3, 2025
Text of Fifth Amendment
"No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for
public use, without just compensation."
Text of the Fourteenth Amendment
"All persons born or naturalized in the United States and subject
to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the
equal protection of the laws."
Equal Protection Tests
(Standards of Review)
1. MINIMUM SCRUTINY TEST (also called rational basis
test and minimum rationality review)
Is the use of the classification rationally related to a
legitimate government interest?
(The challenger must prove that the use of the
classification is not rationally related to a legitimate
government interest.)
2. INTERMEDIATE SCRUTINY TEST
Is the use of the classification substantially related to
the accomplishment of an important government interest?
(The government must prove that the use of the
classification is substantially related to the
accomplishment of an important governmental objective, but
the government need not prove that the use of the
classification is absolutely necessary to the accomplishment
of the objective only that there is a close fit between the
use of the classification and the government's objective.)
3. STRICT SCRUTINY TEST
Is the use of the classification necessary to the
accomplishment of a compelling government interest?
(The government must prove that it cannot achieve its
compelling objective without the use of the classification.
In other words, that there is no less discriminatory
classification that the government can employ in order to
achieve its compelling objective. Alternative less
discriminatory classifications can be ones that don't employ
the suspect trait at all as well as classifications that
employ the trait, but to a lesser extent. Sometimes the
phrase narrowly tailored is used instead of the word
necessary, but in the context of strict scrutiny narrowly
tailored means necessary.)
Railway Express Agency, Inc. v. New York (1949):
1. "The local authorities may well have concluded that those
who advertise their own wares on their trucks do not present
the same traffic problem in view of the nature or extent of
the advertising which they use. It would take a degree of
omniscience which we lack to say that such is not the case.
If that judgment is correct, the advertising displays that
are exempt have less incidence on traffic than those of
appellants. We cannot say that that judgment is not an
allowable one.
2. And the fact that New York City sees fit to eliminate
from traffic this kind of distraction but does not touch
what may be even greater ones in a different category, such
as the vivid displays on Times Square, is immaterial. It is
no requirement of equal protection that all evils of the
same genus be eradicated or none at all."
New Orleans v. Dukes (1976):
"The city could reasonably decide that newer businesses were
less likely to have built up substantial reliance interests
in continued operation in the Vieux Carre and that the two
vendors who qualified under the 'grandfather clause'—both of
whom had operated in the area for over 20 years rather than
only eight—had themselves become part of the distinctive
character and charm that distinguishes the Vieux Carre. We
cannot say that these judgments so lack rationality that
they constitute a constitutionally impermissible denial of
equal protection."