Bernal v. Fainter Summary

  • Last updated on November 10, 2022

Striking down a state law prohibiting aliens from working as notary publics, the Bernal decision asserted that laws discriminating against resident aliens must be assessed according to the demanding standard of strict scrutiny, thereby requiring a compelling governmental interest in order to be upheld as constitutional.

In a few earlier cases, including [c]Graham v. RichardsonGraham v. Richardson (1971), the Supreme Court had applied strict scrutiny when examining classifications disadvantageous to aliens legally residing in the country. In [c]Foley v. ConnelieFoley v. Connelie (1978), however, when approving a statute that barred aliens from working as state police officers, the majority of the justices endorsed a much less demanding standard of review.[c]Bernal v. FainterTexas;notary public lawNotary publics[c]Bernal v. FainterTexas;notary public lawNotary publics[cat]COURT CASES;Bernal v. Fainter[00560][cat]CIVIL RIGHTS AND LIBERTIES;Bernal v. Fainter[00560]

In the case of Bernal v. Fainter (1984), the Court voted 8-1 that a Texas statute requiring notary publics to be U.S. citizens violated the equal protection clause of the [a]Fourteenth Amendment;equal protection clauseFourteenth Amendment. Writing for the majority, Marshall, ThurgoodJustice Thurgood Marshall asserted that discrimination based on alienage would continue to trigger strict scrutiny. In an attempt to harmonize Foley and Bernal, Marshall claimed that the former had been based on the “political function” exception, which referred to government-sponsored positions that delegate a high degree of responsibility and discretion to enforce the processes of democratic self-government. In contrast to police officers and teachers, he found that notary publics enforced laws without exercising much discretion or authority.[c]Bernal v. FainterTexas;notary public lawNotary publics

Further Reading
  • Bosniak, Linda. The Citizen and the Alien: Dilemmas of Contemporary Membership. Princeton, N.J.: Princeton University Press, 2006.
  • Hull, Elizabeth. Without Justice for All: The Constitutional Rights of Aliens. Westport, Conn.: Greenwood Press, 1985.


Supreme Court, U.S.

Categories: History