explaining, in a § 1983 case alleging selective enforcement based on "religious affiliation," that "at a minimum," equal protection requires "rational-basis review," "intermediate scrutiny" where a "quasi-suspect" class, like gender, is at issue, and "strict scrutiny" only where a suspect class, like race and nationality, is at issue
How later courts described this case
- explaining, in a § 1983 case alleging selective enforcement based on "religious affiliation," that "at a minimum," equal protection requires "rational-basis review," "intermediate scrutiny" where a "quasi-suspect" class, like gender, is at issue, and "strict scrutiny" only where a suspect class, like race and nationality, is at issue
- recognizing that “the conflation of Arab and Muslim identity was deeply entrenched within the courts during the Naturalization Era” (quoting Kha-led A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29, 33 (2013))
- finding the challenged policy had to proceed to the appropriate level of review because “the protected trait by definition plays a role in the decision-making process, inasmuch as the policy explicitly classifies people on that basis”
- holding that a plaintiff need not even suffer an economic injury to have standing to bring an Equal Protection claim
Written by the judges who cited it.
The opinion
ROTH, Circuit Judge,
concurrence.
I agree that plaintiffs have demonstrated standing and made sufficient allegations of violations of equal-protection rights .. I differ from the majority in its failure to determine whether “intermediate scrutiny” or “strict scrutiny” applies here. In our determinations so far, we have also, I be *310 lieve, made the findings necessary to resolve the issue of the appropriate level of scrutiny.
In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with “intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.