SCRUTINY TESTS AND CATEGORIZATIONS

(FOR EQUAL PROTECTION & SUBSTANTIVE DUE PROCESS)

1. WHAT IS THE CLASSIFICATION?

a) The classification is on the face of the law or

b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact

2. WHAT IS THE LEVEL OF SCRUTINY?

Strict Scrutiny Intermediate Scrutiny Rational Basis

Burden on State Burden on State Burden on Plaintiff

Law must be necessary to achieve a Law must be substantially related to an Law must be rationally related to a
compelling government purpose. important government purpose. legitimate government interest

SUSPECT CLASSES (Gender) Government must show NON-SUSPECT CLASSIFICATIONS

Race exceedingly persuasive justification for Alienage classifications related
National Origin the discrimination to self-government and
Alienage generally democratic process
CLASSES Congressional regulation of
FUNDAMENTAL RIGHTS Gender aliens
Travel Illegitimacy Age
Parenting Undocumented Alien Children Handicap
Marriage Wealth/Poverty
Procreation NON-FUNDAMENTAL RIGHTS All other classifications
o Abortion = undue burden test Right to Refuse Medical
Voting Treatment (possibly) ALL OTHER NON-FUNDAMENTAL
Gun Ownership Homosexual Activity RIGHTS
Privacy Restrictions
Religion

3. DOES THE LAW MEET THE LEVEL OF SCRUTINY?

Note: This chart is designed as teaching tool for the Washburn University School of Law Bar Services
Program. Though it is helpful for MBE bar exam study, it does not include a completely detailed and
exhaustive list of due process issues, standards, and violations that may exist in actual practice.