Equal Protection

Equal Protection The Equal Protection Clause of the Fourteenth Amendment, adopted in 1868, expressed the commitment of victorious Republican forces after the Civil War to include in the Constitution some protection for the equal rights of newly emancipated slaves. Discussions of equality in 1868 did not sharply distinguish among the protections afforded by the Due Process Clause, the Privileges and Immunities Clause, and the Equal Protection Clause. The focus of the concern for equality was on the rights of African‐Americans, but the framers of the Equal Protection Clause deliberately drafted it to provide protection for the equal rights of all persons. In recent years this has meant that the clause provides protection for the rights of noncitizens, but shortly after the adoption of the amendment the most important result of the use of the general term person was to assure that corporations would be protected against invasions of their rights by state legislatures (Santa Clara County v. Southern Pacific Railroad Co., 1886).

By its terms, the Equal Protection Clause covers action only by state governments. Bolling v. Sharpe (1954), one of the desegregation cases that involved the District of Columbia schools, held that discrimination by Congress could violate the Due Process Clause of the Fifth Amendment. The Court has, in general, applied the same standards of equal treatment to action by Congress as it has to action by state legislatures.

Ideas of equality prevalent in the 1860s distinguished between civil, political, and social rights. One reason the Fourteenth Amendment was adopted was to ensure that the Civil Rights Act of 1866 could not be repealed. That act protected equality with respect to civil rights, understood as including the rights to own property and make contracts, and to appear as a witness in court to protect those rights. Equality with respect to civil rights meant equal status in the legal relations of the private economy, coupled with the right to enforce that equal status. Equality with respect to political rights was more controversial at the outset, with many supporters of equal civil rights opposed to equal voting rights for African‐Americans. The adoption of the Fifteenth Amendment largely abated any concern over equal political rights for a time, but concern about equal social rights persisted well into the twentieth century. Social rights were those arising from the personal, noneconomic interactions among people, and there was general agreement in 1868 that the federal government ought not attempt to guarantee equality in that domain.

The distinction between civil, political, and social rights became blurred in the late nineteenth century, as the national commitment to equal rights of some sort for African‐Americans faded. The Supreme Court held that statutes explicitly denying African‐Americans the right to sit on juries violated the Constitution's promise of equality (Strauder v. West Virginia, 1880) and also held that the Constitution was violated when administrators used a law that did not overtly refer to race to impose disabilities only on members of a racial minority (Yick Wo v. Hopkins, 1886). However, the Court construed some federal civil rights statutes narrowly and held that Congress lacked power under section 5 of the Fourteenth Amendment to enact a law barring places of public accommodation from discriminating on the basis of race because, in the Court's view, that was an effort to require equality in social rights (Civil Rights Cases, 1883). When the Court upheld a statute requiring railroads to segregate their passengers by race (Plessy v. Ferguson, 1896), it effectively abandoned the effort to assure civil equality for African‐Americans through the Constitution, for in the terms used in 1868 the statute denied the equal right of African‐Americans to enter into a contract on nondiscriminatory terms that the railroads were willing to offer.

Until the 1940s the Equal Protection Clause was rarely invoked to invalidate legislation, occasionally being used to restrict the ability of states to regulate business. Concern about the racist policies of Nazi Germany, and about the incompatibility of racial discrimination with the values the Allied powers were defending during World War II, led to a revitalization of the Equal Protection Clause. The Court suggested that it would apply the Constitution with special care in cases involving disabilities imposed on “discrete and insular minorities” (Footnote Four, United States v. Carolene Products, 1938). And in the course of upholding the internment of Japanese Americans during the war, it stated that classifications affecting racial minorities had to survive “strict scrutiny” (Korematsu v. United States, 1944), which the Japanese relocation measures did, the only instance in modern times when a race‐discriminating government action has. The final element of the revival of the Equal Protection Clause occurred when the Court invalidated a statute requiring the sterilization of violent recidivists, but not recidivists in white‐collar crime, on the ground that classifications affecting fundamental interests had to be strictly scrutinized (Skinner v. Oklahoma, 1942).

During the 1960s the Supreme Court overturned numerous statutes requiring segregated public facilities and began to explore the broader implications of the doctrine it had begun to develop in the prior decade. Cases like Shapiro v. Thompson (1969), invalidating a requirement that recipients of public assistance reside in a state for a year before they became eligible for assistance, suggested that the Court was about to treat poverty as a classification that entailed strict scrutiny (see Indigency). The Court under Chief Justice Warren Burger pulled back from the broader suggestions in these cases and ultimately held that strict scrutiny was appropriate only in cases involving traditional racial minorities and fundamental interests that were themselves spelled out in the Constitution (*San Antonio School District v. Rodriguez, 1973).

Formally, the problem of equal treatment arises when the government treats one group differently from another in the pursuit of some social goal. Ordinarily, not all members of the disadvantaged group will contribute to the evil that the government is trying to avert and some members of the favored group will contribute to that evil. Classifications are therefore typically both “overinclusive” and “underinclusive.” The problem for equal protection law is to specify what degree of lack of correspondence between the social goal and the classification used is permissible under what circumstances.

Equal protection law can be described in two ways. First, the Court distinguishes between statutes that themselves utilize racial or other “suspect” classifications and statutes that, though stated in nonracial terms, nonetheless have a “disparate impact” on racial minorities. If the statutes use racial terms, they must survive strict scrutiny, which means that the legislature must be attempting to promote extremely important social goals, and the use of the racial category must be almost essential if those goals are to be served. The fit between the social goal and the classification must be extremely close. In contrast, if the statutes are “facially neutral” in not using racial terms, the fact that they have a disparate impact in practice does not automatically lead to strict scrutiny. Only if the unfair impact on minorities is deliberately intended by the legislature will the Court demand strict scrutiny; otherwise, the legislation must simply be using a classification that is a rational method of accomplishing social goals that the legislature believes important.

The second description of equal protection law treats the distinction between “strict scrutiny” and “rational relationship” differently. On this view the Court has identified several types of classifications. Some, such as racial classifications, call for strict scrutiny, where the fit between social goal and classification must be extremely close, whereas others, such as those basing government action on the ability of people to pay for services or on their participation in certain aspects of the private economy, are social and economic legislation where the legislature must merely be rational in using the classification to serve its goals. In the latter cases, the fit between social goal and classification can be quite loose; the legislature can regulate many people who do not contribute to the evil it is trying to avert, and it can fail to regulate a great many people who do contribute to that evil. Groups that are entitled to strict scrutiny, the Court has suggested, are “discrete and insular minorities” who have historically faced extensive unjustifiable discrimination, who are unable to remove themselves from the category, and who have been the subject of such prejudice that they are unable to protect their interests in the legislative process.

There is, however, a third group of classifications that calls for “intermediate” scrutiny. The doctrinal formulations of intermediate scrutiny have varied, as have the groups that elicit it. The prototypical case involves a classification based on gender, but the Court has sometimes used heightened or intermediate scrutiny in cases involving aliens and extramarital children (see Alienage and Naturalization). Intermediate scrutiny typically means that the Court will look somewhat skeptically on the claim that using a gender or similar classification is necessary to serve important social goals, but it will not demand the extraordinarily high levels of justification that it seeks in cases involving strict scrutiny. Using intermediate scrutiny, the Court invalidated gender segregation in nursing schools (Mississippi University for Women v. Hogan, 1982) and Virginia's operation of a military college to train only men with a distinctive curriculum (United States v. Virginia, 1996). It upheld a requirement that only men register for the draft, at least when women are not eligible by statute for combat duty (Rostker v. Goldberg, 1981).

Analysts have had difficulty reconciling the Court's results with the doctrinal formulations it uses. For example, the Court explicitly refrained from requiring either strict or intermediate scrutiny in a case involving discrimination against the mentally retarded, but it nonetheless found unconstitutional a city's attempt to bar a residential group home for the mentally retarded (City of Cleburne v. Cleburne Living Center, 1985). Justice Thurgood Marshall criticized the Court for pretending that its equal protection analysis uses rigid categories, in which only a few “suspect” classifications or fundamental rights spelled out elsewhere in the Constitution receive special protection. Rather, he argued, it has adjusted the degree of justification it demands according to a sensitive calculus that takes into account questions of degree. These questions include how important the interest affected is, whether or not that interest is specifically protected by the Constitution, and how similar the affected group is to groups that have historically been the subjects of unjustifiable discrimination. Justice John Paul Stevens suggested a similar approach, based on his view that “there is only one Equal Protection Clause” (Craig v. Boren, 1976), not several with different standards of review.

Commentators generally agree that Marshall's analysis and Stevens's make more sense of the Court's actual behavior, and that a more flexible approach than the Court's is appropriate to deal with the varied problems of classification that the Court confronts. Some decisions suggest a relaxation of the Court's dedication to the “tier” approach. Romer v. Evans (1996) invalidated a Colorado initiative that denied homosexuals and lesbians the ability to secure “protected status” under state antidiscrimination rules, invoking rational‐basis review and refraining from holding that sexual orientation was a suspect classification. *Grutter v. Bollinger (2003) invoked strict scrutiny but nonetheless upheld an affirmative action program, thus making it clear that, contrary to a widely held view, strict scrutiny was not always “strict in theory but fatal in fact.”

Despite these decisions and academic criticisms, the Court seems committed to using the verbal formulations expressed in the “tier” approach.

See also Fourteenth Amendment; Race and Racism.

Bibliography

Michael Kent Curtis , No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).
Gerald Gunther , Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, Harvard Law Review 86 (1972): 1–48.
Kenneth W. Simons , Overinclusion and Underinclusion: A New Model, UCLA Law Review 36 (1989): 447–528.

Mark V. Tushnet