Nahmod Law

Introduction

Litigants who challenge a legislative classification on equal protection grounds prefer, for obvious reasons, to have strict scrutiny apply to that classification. The paradigm suspect classification for which strict scrutiny is used is a classification based on race. However, there is another category of equal protection cases in which a legislative classification has to overcome strict scrutiny, namely, those cases in which a legislative classification burdens a fundamental interest. Unfortunately, this category often causes a great deal of confusion.

The Supreme Court’s Record

It has not helped that the Supreme Court has sometimes misleadingly characterized fundamental interests as “fundamental rights.” At other times, the Court has made clear that fundamental interests are not substantive constitutional rights at all but are “only” fundamental interests. At still other times, the Court has applied strict scrutiny in equal protection cases in which  substantive constitutional rights were indeed implicated.  Ultimately, the development of fundamental interest doctrine came to a halt in San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). Read the rest of this entry »