Bernal v. Fainter


Petitioner is a legal alien who worked as a paralegal and also sought to become a public notary.  However, in Texas, only citizens can become public notaries.  He sued claiming a violation of his equal protection rights.  The appellate court held that the statute doesn’t violate the equal protection clause.


Whether the requirement that a public notary be a citizen violates the equal protection clause of the constitution.


Yes, the law is unconstitutional.  Reversed and remanded.  Generally speaking, laws that discriminate on the basis of alienage undergo a strict scrutiny analysis, with the exception of laws that apply to aliens in public/governmental positions.  The court here states that the exception does not apply because the position of public notary is “ministerial” and “clerical.”   Positions where the exception does and should apply are those where higher level decision making or truly political decision making occurs.

The stated purpose of the law – which must have a compelling governmental interest in undertaking – is to keep governmental officials’ allegiances to the US and state, not to a foreign country.  Moreover, public official who are non-citizens, generally should not have public powers and authority over non-citizens; this is necessary to support the symbolic legitimacy of the government. The state of TX also argued that a notary must be familiar with the state’s laws, which is more difficult for non-citizens to accomplish. Using strict scrutiny, the court states that the law is not overly broad so as to unnecessarily harm the impacted alien group.  However, the purpose of the law is not sufficient because it applies to notaries who do not have “important public duties.”

Notaries are generally required to become familiar with state laws and to testify at trial, among other duties.  The state of TX did not adequately show that discriminating against aliens through this statute was a better alternative to not discriminating because there was no evidence that aliens could not familiarize themselves with state law or testify at trial.

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