This tripartite jurisprudence, however, requires us to figure out which groups belong in which category. An undeniably difficult task.
Racial distinctions get strict scrutiny. Understandably so. (Ditto for alienage and national origin.) Gender distinctions receive intermediate scrutiny. (Same for illegitimacy.) Lower-level distinctions -- for example, laws that distinguish between different types of hot dog vendors -- receive only rational basis review.
Deciding which category different groups falls into involves several different factors, but the biggest (and most expansive) one is basically how these groups have been historically (mis)treated. The bigger the history of misconduct and discrimination, and the more the particular group has historically been excluded from the overall public sphere, the higher the level of governmental review.
Which makes sense. The more we know that a group is historically discriminated against, the more we should be cautious that existing governmental distinctions continue -- or are a vestige of -- that historical discriminatory treatment.
This Court of Appeal opinion involves the question: What category of equal protection review applies to laws that differentially affect people with an intellectual disability (i.e., in the language of old opinions, the "mentally retarded")? Strict scrutiny? Intermediate review? Rational basis?
If you were on the California Supreme Court (or the United States Supreme Court), what would you decide?
There's no doubt that, like race or gender, developmental disabilities are fairly immutable. There's also a fairly long and substantial degree of discrimination. Indeed, at one point in our nation's history, the U.S. Supreme Court even approved the involuntary sterilization of individuals based upon that characteristic.
So how does this group compare to race-based, or gender-based, or other group-based discrimination, in your view? What level of scrutiny would you apply given this historical (and perhaps contemporary) treatment)?
Do you agree?
