Wealth Discrimination

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Wealth discrimination—the state's allocation of resources on the basis of ability to pay—has received the attention of the courts only recently. Sensitivity to the plight of the poor was an outgrowth of the civil rights movement of the 1960s. Thus, the first constitutional issue raised by equal protection claims of the poor was whether poverty-based discrimination is analogous to racial discrimination for purposes of the applicable standard of review.

Advocates of this analogy stress the poor's lack of political power and the public's antipathy to the poor and to programs, such as welfare, enacted to ameliorate poverty. They argue that the Supreme Court should give less deference to legislative judgments when reviewing poverty discrimination claims than it does when reviewing economic regulations challenged by those able to pursue nonjudicial means of redress. However, at no time during the more than quarter of a century since the Court's first decision in this area, griffin v. illinois (1956), has a majority of the Court ever embraced the analogy to race for purposes of equal protection review.

The Griffin decision held unconstitutional a state's refusal to provide an indigent convicted criminal defendant with a free transcript necessary to obtain meaningful appellate review. In so holding, Griffin enunciated a potentially expansive principle of "equal justice": "[A] state can no more discriminate on account of poverty than on account of religion, race, or color.… There can be no equal justice when the kind of trial [or appeal ] a man gets depends on the amount of money he has."

Since Griffin, the Supreme Court has struck down poverty-based discrimination in only a few other cases, most notably douglas v. california (1963) and boddie v. connecticut (1971). Douglas held unconstitutional a state's refusal to appoint counsel for an indigent seeking appellate review of a criminal conviction; and Boddie held unconstitutional a state's refusal to waive court access fees which deprived an indigent plaintiff of access to the only available forum for obtaining a divorce.

In the vast majority of poverty-based discrimination cases, however, the Supreme Court has treated the poor's claims, whether they involve access to the judicial process itself, equal educational opportunity, or the very means of survival, the same as any other challenged "social and economic" regulation. Thus, the Court has applied the rational basis standard of review to uphold a $50 bankruptcy filing fee against a debtor too poor to pay it; a state financing system that allocated educational resources according to the tax bases of school districts; and an allocation of welfare benefits that discriminated on the basis of family size. (See United States v. Kras, 1973; san antonio independent school district v. rodriguez, 1973; dandridge v. williams, 1971.)

Several reasons may underlie the Court's refusal actively to scrutinize legislation adversely affecting the poor. If the Court holds a payment requirement unconstitutional as applied to the poor, someone must decide who is poor enough to qualify for this affirmative relief. Moreover, such a holding may require the legislative branch to reallocate its budget to provide the funds necessary to pay for what the poor cannot afford, something which the courts are always reluctant to do, especially in times of economic recession.

Another reason for judicial restraint lies in the need for line-drawing. If not all poverty-based inequalities or deprivations are unconstitutional—as surely they are not in a market economy—then the Court must delineate those interests that are sufficiently "vital" or "fundamental" to justify stricter judicial scrutiny when the state allocates such interests through a pricing system that deprives poor people from access to them. Obvious candidates include basic necessities such as food, housing, and other means of subsistence. Beginning with its 1971 decision in Dandridge, however, the Supreme Court consistently has refused to treat any such interests as entitled to a heightened equal protection standard of review. Moreover, in maher v. roe (1977) the Court carried this refusal to apply a meaningful equal protection standard to any discriminatory "social and economic" legislation to the extreme of validating a provision prohibiting Medicaid funding of abortion although other, including pregnancy-related medical care costs, were funded and the choice to seek an abortion rather than bear a child had been held to be constitutionally protected. Moreover, Maher upheld this discrimination even though, unlike the discrimination upheld in all similar prior cases, it cost rather than saved taxpayer dollars. (See harris v. mcrae, 1980.)

The Court's refusal since 1971 to treat "vital interests" of the poor as comparable to constitutionally guaranteed rights is one matter. In Maher, however, the Court validated discrimination only among the poor and solely on the basis of the poor's attempt to exercise a constitutionally guaranteed right of choice otherwise available to everyone. The recent jurisprudence of wealth discrimination legitimates and reinforces a dual system of constitutional rights, leaving the poor—who disproportionately are composed of women, children, the aged, and racial minorities—with paper rights beyond their financial reach.

Barbara Brudno


Binion, Gayle 1982 The Disadvantaged Before the Burger Court: The Newest Unequal Protection. Law & Policy Quarterly 4:37–69.

Brudno, Barbara 1976 Poverty, Inequality, and the Law. St. Paul, Minn.: West Publishing Co.

——1980 Wealth Discrimination in the Supreme Court: Equal Protection for the Poor from Griffin to Maher. Pages 229–246 in Ron Collins, ed., Constitutional Government in America. Durham, N.C.: Carolina Academic Press.