QUESTION $12$

Hypo $2$

One last change to the fact pattern:

The hearing happens at the appointed date and time and Sue attends. After hearing the concerns of various attendees, including Sue, the state building commissioner explains that because of the size of the project, only firms who employ an architect, an engineer, and construction manager may enter a bid. This requirement is in place to protect the health, safety and well$-$being of the community members for whom the building is being built.

Which of the following statements is true:

A$.$ If Sue sues on a theory that she has suffered gender discrimination, she will prevail because the state's action will have to survive intermediate review.

B$.$ If Sue sues on a theory that her constitutional rights were violated, she will prevail because the state's action can't survive strict scrutiny review.

C$.$ If Sue sues on a theory that her fundamental rights were violated, she will prevail because the state's action can't survive strict scrutiny review.

$$ D$.$ Regardless of what theory Sue sues under, if the state can show that its actions are being taken in the interest of the health, safety and general welfare of the community, it will prevail.