Friday, February 24, 2023

Equal Protection and Levels of Scrutiny: A Hypo


14th Amendment, Section 1.

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.
 
 
Assume the State of Nebraska wishes to have a State-sponsored Fourth of July pageant which would include a drama portraying the story of George Washington at Valley Forge.


Four actors try out for the part, which pays a stipend of $5000.


The first actor (A) is a tall, slender Black male, maybe Denzel Washington.


The second actor (B) is a tall, slender White male who bears a remarkable resemblance to George Washington. Maybe Liam Neeson


The third actor (C) is Danny DeVito, a short, rotund White male who bears no resemblance to George.


The fourth actor (D) is a White woman of average height and weight. Maybe Meryl Streep.


Assume all four actors have equivalent acting ability. Suppose the casting director, a state employee, hires B and informs A that he was rejected because of his race, C that he was rejected because of his size, and D that she was rejected because of her gender.


What are the constitutional law issues here under the Equal Protection Clause?