norml17 - Page 18
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compiled in the 12 years since his dissent), and with the broader protection
provided under the state constitution, one. might persuade four other justices,
rather than two, to join him, creating a majority and changing the law.
Co rr .e, _ r aly si
It is interesting to note that while 15 states have "privileges and
irr_nunifies '' clauses in their constitutions, as of t988 only one, Oregon, had
applied an analysis independent of the federal "equal protection" analysis
applied by the U.S. supreme court°6* The fact that Oregon has applied such
an analysis may be significant, however, because Washingtoffs privileges and
immunities ctause is based on Oregon's˘ 9 and is identical except that
Washington inserted words dealing with corporations. 7o
Under Washingtonffederal analysis today, _ere are three tests used to
deterrmne whe_er a right to equal protection has been violated, in
. Strict scrutiny applies if an allegedly discriminatory statutory classification
affects a suspect class or a fandament2d right. Suspect classifications are
typically bose based on race, alienage or national origin. Under this test,
a law may be upheld only if it is shown to be necessary to accomplish a
"compelling state interest?'
. Heightened scrutiny (or intermediate scratiny) is typically applied m
gender-based classifications, but has been held to apply when the
chalIenged law affects both an important right (such as liberty) and a serrfi-
suspect class not accomatable for its stares (such as the poor). The test is
that the law must be seen as "furthering a substantial interest of the state."
, Minimal scrutiny is applied absent any of die reasons to apply the higher
levels, above. The test is whe_er a "rational relationship" exists between
the challenged classification and a legitimate state interest. The
6g Schumau, _T_e Right m _Equal Privileges _md Immunities°: A State*s Version of _FXlUal Protection,'" 13
VL L. Roy. 221_ 223, 225-26 (1988).
69 _'Sourees of Washington Coas_imtion" section, 1991-92 LegisLative Mamml, page 367.
7o Wash. ConsL art l, § 12: '_No law shall be passed granting m ai_y citizee_, class of citizens, or
corporation ofner d_a_ municipal, privileges or immunities which upon ige same _er,_s _atl not eqmtlXy
belong to all citizens, or corporafiOnSo _ Or. COngo art L § 29: "No law _˘aaU be passed gra_ting to any
citizen or class of citizeas privileges, or immunities, which, upon _ae same terms, shaU not equally
belong to all citizens. _
71 Sumanarized N _J,ille___,_S_miI_, 117 Wn. 2d 263, 277-279 __ P.2d _ (199t).
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