Can someone explain this to me? Con law substantive due process/equal protection question.
This was a question on the Themis simulated MBE:
Concerned about problems caused by overpopulation, a state legislature enacted a statute imposing
criminal penalties on any person who is the biological parent of more than two children. The stated
purpose of the statute was to preserve the state’s natural resources and improve the quality of life for the
state’s residents. After the statute took effect, a married couple who already had two children conceived a
third. After the wife gave birth to this child, the couple was arrested and convicted under the statute.
Which of the following is the strongest argument for voiding their convictions?
Two answers were clearly wrong. The remaining two were
(1) The statute places an unconstitutional burden on the fundamental privacy and procreative rights of married persons.
(2) The statute denies the couple their Equal Protection Rights.
The answer was #1, which I picked. I thought about picking #2, though. In the Themis answer explanation they say that the EP answer is not correct because the class is not suspect so all that needs to be satisfied is the rational basis test. I was thinking about this as I went to sleep last night.
In the Themis outline, it states that non-suspect-class-based discrimination is still subject to strict scrutiny where the use of the classification burdens fundamental rights. So, for this question, strict scrutiny seems like it should apply to the equal protection claim. While "people with 2 children" is not a suspect or quasi-suspect class, the classification is being used to burden this non-suspect-class' fundamental rights.
Also, the outline suggests that where a problem suggests that all person's fundamental rights are being burdened, we should go for substantive due process, but that when only some person's fundamental rights are being burdened, we should go for equal protection. Isn't the latter exactly what's happening in this question? Anyways, don't these two claims just overlap? I don't think you have to show that a law would universally deny a fundamental right to everyone else to show that it's violating YOUR substantive due process rights, do you? If you went to court on these facts you'd just allege both claims, and both would be viable, if somewhat redundant?
So in this question, both substantive due process and a equal-protection-burdening-of-fundamental-rights should be avenues for a claim, shouldn't they, and actually, EP is a better fit if you're supposed to go for EP when non-suspect-classifications burden fundamental rights?