pancakes3 wrote:Puffman1234 wrote:I agree that there has to be an extra layer of classification over "people whose fundamental rights are burdened," but in this case the class is "people who have more than two biological children." A person with one or no biological children wouldn't be affected so there's a classification beyond those whose rights are burdened. The Themis answer seems to acknowledge this, because it states that "people with more than 2 biological children" is a non-suspect class for EP purposes and that therefore the only EP test to apply is rational basis. I don't think that's right.
In your example, if eating broccoli were a fundamental right and the law said "people with more than 2 biological children cannot eat broccoli" but it didn't forbid anyone with one or no biological children, or any number of non-biological children, from eating broccoli, that wouldn't mean there wasn't a classification. It'd just be a non-suspect classification, which also burdened that non-suspect classification's exercise of fundamental rights while not burdening any other people's fundamental rights.
As far as I can see the only time a law will ever truly burden fundamental rights without any reference to some form of classification, be it suspect or not, is if it bars EVERYONE from something. If a state passed a law that said "NOBODY can have kids" that's 100% pure substantive due process. But if it made ANY non-suspect classification on who that law would apply to, then a member of that class (assuming standing) would have an as-applied substantive due process claim and an EP burdening-the-fundamental-rights-of-a-suspect-class claim.
That's just my take on it. If I'm totally wrong then I'd like to know why. If I'm not totally wrong then I hope the MBE questions are better written.
I would argue that:
a law that says "women have more than 2 kids" affects women and only women so women are the suspect class.
a law that says "no one can have more than 2 kids" affects people with no kids also, so it's tough to argue that there's a suspect class at all.
a law that says "people with more than 2 kids can't eat broccoli" would make "people with more than 2 kids" a suspect class but a law that says "no one can eat broccoli" is more of a deprivation of the
life propertyliberty to eat broccoli.
of course there's no reason to say that it can't be both SDP and infringing on the equal protection of the law, but that's just how I issue-spotted your question.
Everything you've said here jibes with what I said as far as I can see, so I think we're in agreement.
I've done a bit more research on this and I'm pretty sure my analysis is correct. However, what I'm going to do on the MBE is always pick Substantive Due Process if it involves a non-suspect class and fundamental rights. Only if there is no substantive due process option and there is an EP option and it involves fundamental rights will I then pick EP. But there are other provisions that cover fundamental rights too, like the Comity Clause doesn't let a state discriminate against other state's citizens' with regard to fundamental rights. Hopefully context makes it clear.
I would have probably leaned to substantive due process as the "strongest argument" anyways when a fundamental right like procreation is being burdened, even if it's on the basis of a nonsuspect class, although I pretty sure SDP and EP are both available claims and arguably equally strong avenues of attack. The Themis answer saying that in this scenario rational basis only would apply is what made me think about it so much.
I'm going to get over it and move on now because I got other shit to do, lol.