CIVIL RIGHTS AND EQUAL PROTECTION

An American belief in fairness is basic to present-day U.S. society. Consequently, the use of personal traits such as race, gender (sex of the person), or nationality to legally set apart one group of people from others raises serious concerns over human equality. However, this notion of equality in the United States at the beginning of the twenty-first century is not the same as when America was very young. Although the 1776 Declaration of Independence proclaimed that "all Men are created equal" with certain basic rights including "Life, Liberty, and the Pursuit of Happiness," the goal of liberty from England was stronger than striving for equality among the colonists. As a result, some classes of people enjoyed more rights than others. For example, in the first years of the nation only white male adult citizens who owned property could vote. Excluded were women, people of color, and the poor who held no property to speak of. Slavery was recognized as an important part of the nation's economy. In fact, nowhere did the term equality appear in the U.S. Constitution adopted in 1789 or the Bill of Rights of 1791.

Following the American Civil War (1861–65), Congress passed three new amendments to the Constitution, the Thirteenth, Fourteenth, and Fifteenth amendments. Collectively known as the Civil Rights Amendments, their main purpose was to abolish slavery, provide citizenship to the newly-freed slaves, and to guarantee their civil rights. Civil rights refers to the idea of participating free from discrimination (giving privileges to one group but not another) in public activities such as voting, staying in an inn, attending a theater performance, or seeking employment. The idea of equality under the law first appeared in the Constitution with the passage of the Fourteenth Amendment ratified (approval) in 1868. The amendment contained wording that people refer to as the Equal Protection Clause. The Equal Protection Clause declares that state governments can not "deprive any person of life, liberty, or property, without due process of the law (all legal proceedings must be fair); nor deny to any person within its jurisdiction (geographical area over which authority extends) the equal protection of the laws." Equal protection of the laws means no person or persons will be denied the same protection of the laws that is enjoyed by other persons or groups.

The Long Struggle Toward Equality

Equal treatment of America's diverse population, however, did not immediately follow. When cases involving equality issues were first brought before the federal courts including the U.S. Supreme Court, the courts consistently interpreted the Fourteenth Amendment narrowly (very limited in meaning ). The first major interpretation came in the Slaughterhouse Cases (1873). The Supreme Court held that basic civil rights of individuals were primarily protected by state law. Federal government protection was limited to a narrow set of rights such as protection on the high seas and the right to travel to and from the nation's capital. A second example of narrow interpretation came in 1883 in the Civil Rights Cases involving the Civil Rights Act of 1875 passed by Congress to enforce the Civil War Amendments. This act sought to assure equal access to public transportation and public places such as inns and theaters. The Supreme Court ruled that the Fourteenth Amendment only applied to discrimination by state governments, not to discrimination by private persons such as owners of railroads, theaters or inns. The Court ruling largely overturned (negated) the 1875 act leaving the federal government virtually powerless to control discrimination against blacks by private persons. Taking advantage of this powerlessness, the governments of many Southern states created segregation (separation of groups by race) laws in the 1880s known as Jim Crow laws. Black supporters of racial justice, such as Frederick Douglass and Ida B. Wells-Barnett (see sidebar), crusaded against the often violent treatment of African Americans.

The next major setback to those seeking true equality in access to public facilities (places) was the Plessy v. Ferguson (1896) decision in which the Court established the "separate but equal" rule. The rule meant that violation of the Equal Protection Clause would not occur as long as African Americans had access to the same kind of facilities as whites, even if they were separate from those used by whites. This ruling led to African Americans and whites having separate water fountains, separate public restrooms, and separate schools. The ruling basically promoted racial segregation, and rarely were the separate facilities of equal quality.

Ironically, aliens (citizens from foreign countries) initially received more favorable treatment from the courts concerning equality than African Americans. In Yick Wo v. Hopkins (1886) the Supreme Court ruled in favor of a Chinese laundry owner. The owner claimed a San Francisco city ordinance (law) concerning business licenses, although containing no discriminatory wording, was intended to shut down Chinese laundry businesses in the city. Yick Wo was the only successful equal protection challenge among the first cases brought to the Supreme Court in the decades following the ratification of the Fourteenth Amendment. In fact, the Fourteenth Amendment's guarantee of equal protection seemed useless for seventy years after it became a part of the Constitution. During those decades the Court tended to view equality in terms of protection of property rights or business interests, not individual civil rights.

A Shift to Individual Civil Rights

The historically important shift in applying equal protection to individual civil rights began to occur in the late 1930s through efforts of the National Association for the Advancement of Colored People (NAACP) and other groups. The courts responded with favorable decisions for racial minorities suffering injustices. For example, in Missouri ex rel. Gaines v. Canada (1938) the Supreme Court ruled in favor of an individual denied entrance into a state law school. The Court found that a requirement based solely on race violated the Equal Protection Clause.

The Modern Civil Rights Era

Two major 1954 Court decisions introduced the modern civil rights era. In the epic case of Brown v. Board of Education, the Supreme Court struck down the "separate but equal" rule by finding that public school segregation was unconstitutional (not following the intent of the U.S. Constitution). A civil rights revolution was begun. That same year in Bolling v. Sharpe the Court held that the Due Process Clause in the Fifth Amendment prohibited racial discrimination by the federal government just as the Equal Protection Clause of the Fourteenth Amendment prohibits discrimination by state governments. The door was opened to much broader protection of individuals' civil rights.

Still, progress in society recognizing individual civil rights following decades of discrimination was slow. Numerous protests followed often involving highly publicized acts of civil disobedience (peacefully disobeying laws considered unjust) under the leadership of Dr. Martin Luther King, Jr. and others. Eventually widespread violence erupted in the nation's cities.

The Federal government began responding to the growing social unrest in the mid-1960s with a series of laws designed to further recognize civil rights and equality under the law. The 1963 Equal Pay Act required that men and women receive similar pay for performing similar work. The landmark 1964 Civil Rights Act prohibited discrimination based on race, color, national origin, or religion at most privately-owned businesses that serve the public. The 1964 act also established equal opportunity in employment on the basis of race, religion, and sex. An important Court decision occurred in 1964 as well. In Reynolds v. Sims the Court extended equal protection to voters rights. The "one person, one vote" rule resulting from the decision was put into law by Congress the following year in the 1965 Voting Rights Act. Prohibited were state residency requirements, poll taxes (pay a tax before voting), and candidate filing fees that traditionally were used to discriminate against poorer minority voters. In 1967 the Court in Loving v. Virginia ruled that state law could not prohibit interracial marriages thus recognizing the right of individuals to select their own marriage partners. A fourth important law followed in 1968 with the Fair Housing Act prohibiting discrimination in housing.

The successes of the civil rights movement of the 1950s and 1960s, focused primarily on racial discrimination, began to influence concerns over other forms of inequality. In 1971, the Court in Reed v. Reed overturned a state law arbitrarily discriminating against women. This decision extended the Equal Protection Clause to apply to gender discrimination. Courts also found some laws discriminatory against illegitimate children (parents not married) and unwed fathers. In Weber v. Aetna Casualty & Surety Co. (1972) the Court ruled that illegitimate children should have the same rights as other children. They should not be penalized through life for their parents' actions over which they had no control. Through the 1980s and 1990s equal protection issues tackled new topics such as sexual harassment, gay rights, affirmative (vigorous encouragement of increased representation of women and minorities) action, and assisted suicide (right to choose when to die).

Standards of Scrutiny

The Equal Protection Clause does not require that all people be treated equally at all times. Discrimination is sometimes legally permitted, such as not allowing people under eighteen years of age to vote in elections. The key decision often before the courts is to determine when discrimination is justified.

Through the nineteenth and twentieth centuries the Supreme Court increasingly recognized that throughout America's history some groups tended to be inappropriately discriminated against more than other groups. For example, people of color and women are two groups who have been traditionally discriminated against more than white men. Over the last 150 years of Supreme Court debates and decisions, the Court determined that to properly defend these groups' civil rights, the cases involving them would have to be looked at very closely. At the beginning of the twenty-first century the Court used three different standards or levels of examination or inquiry, called scrutiny, to test a case for equal protection violations. A case receives the highest level of scrutiny or "strict scrutiny" if it involves racial issues, aliens, or issues of nationality. At the intermediate level of scrutiny are cases involving women or "illegitimate persons" (individuals whose parents were not married). All other cases involving equal protection considerations fall into what is called "rational basis" scrutiny.

Changing Government Roles

The role of government regarding civil rights and equal protection changed dramatically through the twentieth century. Originally, the government primarily sought to resolve conflicts between individuals or other parties and to protect a private individual's behavior from government restrictions unless the behavior was extreme or endangering others. By the end of the century the government had become more of a promoter of community general welfare. It became acceptable to limit the behavior or actions of some people in order to protect the rights of others. An example is a requirement that owners of restaurants, whether they want to or not, must serve all members of the public unless questions of safety or health arise. Many saw this change as a shift from emphasis on political liberty from government rules during the eighteenth century colonial period to ensuring equality for all in the later years of the twentieth century. The Equal Protection Clause has become the primary constitutional shield for protecting the civil rights of the many groups of people in the United States.

Suggestions for further reading

Barker, Lucius J., Mack H. Jones, and Katherine Tate. African Americans and the American Political System. Fourth Edition. Upper Saddle River, NJ: Prentice-Hall, 1999.

Clayton, Ed. Martin Luther King: The Peaceful Warrior. Englewood Cliffs: Prentice-Hall, 1996.

Duster, Alfreda M. Crusade for Justice: The Autobiography of Ida B. Wells. Chicago: University of Chicago Press, 1970.

Weber, Michael. Causes and Consequences of the African American Civil Rights Movement. Austin, TX: Raintree Steck-Vaughn Publishers, 1998.