Constitutional Law Chapter 10 Equal Protection Introduction
The Equal Protection Clause, enshrined in the 14th Amendment
of the US Constitution, is one of the most significant
provisions in American law. It prohibits states from denying
any person within their jurisdiction equal protection
under the law, establishing a legal foundation for challenging
discriminatory practices and ensuring that of all,
individuals are treated fairly. Over time, the interpretation of
the Equal Protection Clause has evolved, with courts developing
various standards or levels of scrutiny, to assess the
constitutionality of laws that classify individuals based on
certain characteristics. These levels of scrutiny,
rational basis review, intermediate scrutiny, and
strict scrutiny serve as analytical frameworks that
courts use to determine whether a law or government action
violates the Equal Protection Clause.
Each level of scrutiny reflects a different degree of judicial
rigor, depending on the nature of the classification and the
rights involved. This chapter delves into the
nuances of these levels of scrutiny, examining how they are
applied, their significance, key judicial decisions, and the
criticisms they have attracted. 1 Levels of Scrutiny Rational
basis, Intermediate and strict scrutiny The judiciary employs 3
primary levels of scrutiny to evaluate the constitutionality
of government actions or laws that potentially violate the
Equal Protection Clause. These levels reflect varying
degrees of skepticism about the government's reasons for
enacting a particular law and the potential impact of the law
on individual rights. The level of scrutiny applied is
crucial because it often determines the outcome of the
case. A Rational basis review
Definition and application. Rational basis review is the
most deferential standard of judicial review.
Under this standard, a law or government action will be upheld
if it is rationally related to a legitimate government interest.
The government does not need to articulate the specific reason
behind the law. It is enough that the law could
conceivably serve a legitimate purpose.
This standard is highly deferential to legislative
judgments and assumes the law is valid unless the challenger can
prove otherwise. Scope and use Rational basis
review is typically applied in cases involving classifications
that do not affect fundamental rights or involve suspect or
quasi suspect classifications, such as economic regulations,
social welfare laws, and classifications based on
characteristics like age, disability, or income.
Given its deferential nature, laws subject to rational basis
review are rarely struck down as the courts are generally
reluctant to second guess legislative decisions in these
areas. Key cases Railway Express Agency
V New York, 1949. In this case, the Supreme Court
upheld the New York City ordinance that prohibited
advertising on vehicles except for advertisements of the
vehicle owners business. The court reasoned that the
ordinance was rationally related to the city's legitimate
interest in Traffic Safety as it sought to reduce distractions
that could lead to accidents. This decision illustrates the
leniency of rational basis review, as the court accepted
the city's reasoning without demanding empirical evidence of
the law's effectiveness. Williamson being the Optical of
Oklahoma 1955, the Supreme Court upheld an Oklahoma law that
prohibited opticians from fitting or duplicating lenses
without a prescription from an ophthalmologist or optometrist.
The court found that the law was rationally related to the
state's interest in protecting public health.
Despite acknowledging that the law might be overly restrictive
or even unnecessary, this case exemplifies the broad discretion
that legislatures have under rational basis review to enact
laws that may seem arbitrary or inefficient as long as there is
a conceivable legitimate purpose.
Criticisms Critics of rational basis review argue that it
provides too much deference to government actions allowing laws
that may perpetuate inequality or discrimination to stand.
This standard places a heavy burden on challengers who must
demonstrate that a law is not merely misguided or unfair, but
wholly irrational or unrelated to any legitimate purpose.
As a result, rational basis review can sometimes uphold laws
that disproportionately impact marginalized groups or reinforce
systemic inequalities, as courts are reluctant to overturn
legislative decisions unless they are clearly arbitrary.
The Role of Hypothetical justifications One of the most
controversial aspects of rational basis review is the
acceptance of hypothetical justifications for a law.
Courts often uphold laws under rational basis review by
speculating about potential reasons that could have
motivated the legislature, even if those reasons were not
explicitly stated at the time the law was enacted.
This approach further diminishes the likelihood that a law will
be struck down, as almost any conceivable justification can be
deemed rational. Implications for Social and
Economic Legislation Rational basis review plays a crucial
role in upholding social and economic legislation, as it
allows States and the federal government to experiment with
different regulatory approaches without constant judicial
interference. However, this deference can also
enable governments to pass laws that disproportionately affect
certain groups, particularly those with less political power,
under the guise of economic or social policy.
Notable Challenges Despite its deferential nature, there have
been instances where courts applying rational basis review
have struck down laws that were deemed irrational.
These cases are rare and typically involve laws that are
so arbitrary or capricious that they cannot be justified under
any conceivable legitimate government interest.
City of Cleburne B Cleburne Living Center, Incorporated,
1985 In this case, the Supreme Court struck down a city
ordinance that required a special permit for a group home
for individuals with intellectual disabilities.
The court found that the ordinance was based on
irrational prejudices and stereotypes about individuals
with disabilities rather than a legitimate government interest.
This decision illustrates that even under rational basis
review, courts may intervene when a law is clearly motivated
by bias rather than reason. Roamer V Evans, 1996.
The Supreme Court invalidated a Colorado constitutional
amendment that prohibited any legal protections for
individuals based on their sexual orientation.
The court found that the amendment lacked a rational
basis and was motivated by animus toward LGBTQ plus
individuals, which could not constitute a legitimate
government interest. Summary of Rational Basis review
Rational basis review is a low threshold for the government to
meet, and it generally results in the upholding of laws that
are challenged on equal protection grounds.
However, the standard is not entirely toothless, as it can be
used to strike down laws that are rational or motivated by
prejudice. The standards broad deference to
legislative judgment reflects a respect for the separation of
powers, but it also raises concerns about the potential for
perpetuating inequality through ostensibly neutral laws.
The intermediate scrutiny definition and application
Intermediate scrutiny is a more rigorous standard of judicial
review than rational basis review, but less stringent than
strict scrutiny. Under intermediate scrutiny, a
law or government action will be upheld if it is substantially
related to an important government interest.
This means that the government must demonstrate a close
connection between the law and the important objective it seeks
to achieve, though it does not need to be as narrowly tailored
as under strict scrutiny. Scope and use Intermediate
scrutiny is primarily applied in cases involving gender based
classifications, legitimacy, and in some instances, sexual
orientation. It strikes a balance between
deference to the government and protection of individual rights,
requiring a stronger justification for laws that
classify individuals based on these characteristics than would
be necessary under rational basis review.
Key cases. Craig V Boren 1976, the Supreme
Court applied intermediate scrutiny to strike down an
Oklahoma law that established different minimum drinking ages
for men 21 years and women 18 years.
The state argued that the law was based on statistical
evidence that men between 18 and 21 were more likely to engage in
drunk driving than women of the same age.
However, the court found that the gender based classification
was not substantially related to the state's interest in Traffic
Safety, as the evidence presented was insufficient to
justify the disparity. United States Fee, Virginia,
1996. In this landmark case, the
Supreme Court struck down Virginia's exclusion of women
from the Virginia Military Institute.
BMIA State funded military college.
The court applied intermediate scrutiny and found that
Virginia's justification for the gender based exclusion
preserving the unique character of VM is educational model did
not meet the required standard. The court emphasized that gender
based classifications must be supported by an exceedingly
persuasive justification and cannot be based on over broad
generalizations about the abilities or roles of men and
women. Criticisms While intermediate
scrutiny is more protective of individual rights than rational
basis review, it has been criticized for allowing gender
based discrimination in certain circumstances.
Critics argue that the standards flexibility can lead to
inconsistent application, with courts sometimes upholding
gender based classifications that may reinforce stereotypes
or perpetuate inequality. Additionally, some legal
scholars have called for the application of strict scrutiny
to gender based classifications, arguing that gender should be
treated as a suspect classification similar to race.
The Exceedingly Persuasive Justification Standard One of
the key elements of intermediate scrutiny, particularly in gender
discrimination cases, is the requirement that the government
provide an exceedingly persuasive justification for the
classification. This standard, articulated in
United States V Virginia, requires more than a simple
rational connection between the law and the government interest.
It demands a robust and well substantiated explanation for
why the classification is necessary.
Applications beyond Gender While intermediate scrutiny is most
commonly associated with gender discrimination, it has also been
applied to other classifications, such as those
based on legitimacy, the status of being born to married versus
unmarried parents, and, in some cases, sexual orientation.
The use of intermediate scrutiny in these contexts reflects the
Court's recognition that certain classifications warrant greater
protection than others, even if they do not rise to the level of
suspect classifications like race.
Notable applications and extensions.
Clark V Jeter, 1988. The Supreme Court applied
intermediate scrutiny to a Pennsylvania law that imposed a
six year statute of limitations on paternity suits.
The court found that the laws classification based on
legitimacy was not substantially related to the state's interest
in preventing stale claims, as it unfairly discriminated
against children born out of wedlock.
United States V Windsor, 2013. Although the Supreme Court did
not explicitly state that it was applying intermediate scrutiny
in this case, it struck down the Defense of Marriage Act, DOMA,
which define marriage as between one man and one woman for
federal purposes. The Court's analysis focused on
the lack of a sufficient justification for the law's
exclusion of same sex couples, leading some scholars to suggest
that the Court applied a level of scrutiny akin to intermediate
scrutiny. Summary of Intermediate Scrutiny
Intermediate scrutiny occupies a middle ground between rational
basis review and strict scrutiny, providing a more
robust examination of laws that classify individuals based on
characteristics like gender or legitimacy.
While it is more protective of individual rights than rational
basis review, it is not as demanding as strict scrutiny,
allowing for some flexibility in how the government justifies its
actions. The standards emphasis on
substantial relationships and important government interests
reflects a nuanced approach to balancing individual rights with
societal needs. See strict scrutiny definition
and application. Strict scrutiny is the most
stringent standard of judicial review.
Under this standard, a law or government action will be upheld
only if it is narrowly tailored to achieve a compelling
government interest. This means that the government
must demonstrate that the law is necessary to achieve a critical
objective and that there are no less restrictive means
available. Strict scrutiny is often
referred to as strict in theory but fatal in fact, as laws
subjected to this level of scrutiny are frequently struck
down. Scope and use.
Strict scrutiny is applied in cases involving fundamental
rights such as the right to vote, the right to free speech,
and the right to privacy and suspect classifications,
including race, national origin, and religion.
Because this standard is so demanding, laws subject to
strict scrutiny are often invalidated unless the
government can provide an exceptionally compelling
justification. Key cases.
Korematsu V United States, 1944 In this controversial case, the
Supreme Court upheld the Interment of Japanese Americans
during World War 2 under strict scrutiny, finding that the
government's interest in national security was compelling
enough to justify the racial classification.
The decision has since been widely criticized as a grave
injustice and a failure of the judiciary to protect civil
liberties in the face of governmental overreach.
Korematsu is often cited as an example of the dangers of
deferring to the government in times of crisis.
Even under the most stringent standard of review, Loving V
Virginia 1967, the Supreme Court applied strict scrutiny in
striking down Virginia's anti miscegenation laws, which
prohibited interracial marriage. The court held that the state's
racial classification could not withstand the rigorous standard
of strict scrutiny as there was no compelling government
interest that justified the discrimination.
Loving is a landmark case in equal protection jurisprudence
and is widely celebrated for its affirmation of the fundamental
right to marry criticisms. Strict scrutiny is often seen as
a double edged sword. While it provides strong
protection for fundamental rights and suspect
classifications, critics argue that it can sometimes result in
the invalidation of laws that serve important societal
interests. Additionally, the application of
strict scrutiny can be inconsistent, particularly in
cases where the court is reluctant to strike down laws
related to national security or other critical government
interests. The standards demanding nature
can also discourage legislatures from enacting laws that address
pressing social issues for fear that they will not survive
judicial review. The narrowly tailored
requirement A critical aspect of strict scrutiny is the
requirement that the law be narrowly tailored to achieve the
compelling government interest. This means that the law must be
as specific as possible in addressing the issue at hand
without unnecessarily infringing on individual rights.
If there are less restrictive alternatives available, the law
will not survive. Strict scrutiny.
Implications for Civil Rights and Liberties Strict scrutiny
plays a vital role in protecting civil rights and liberties,
particularly in cases involving racial discrimination, voting
rights, and freedom of speech. By subjecting laws that impact
these fundamental rights to the highest level of judicial
scrutiny, the courts ensure that any government action that
infringes on these rights is justified by a truly compelling
interest. Notable Extensions and
Applications Shalvi Reno, 1993 The Supreme Court applied strict
scrutiny to a North Carolina redistricting plan that created
a majority minority district, finding that the plan's racial
gerrymandering required a compelling government interest
and narrow tailoring. The case highlights the Court's
concern with racial classifications in the electoral
process and its commitment to ensuring that such
classifications are subject to the highest level of scrutiny.
Citizens United V FEC 2010 Although the case primarily
involved First Amendment issues, the Supreme Court's application
of strict scrutiny to campaign finance laws reflects the
standards broad impact on laws that affect fundamental rights.
The Court struck down provisions of the Bipartisan Campaign
Reform Act, BCRA, that restricted independent political
expenditures by corporations and unions, finding that the
government had not provided a compelling justification for the
restrictions. Summary of Strict Scrutiny
Strict scrutiny is the judiciary's most rigorous
standard for evaluating laws that infringe on fundamental
rights or involve suspect classifications.
Its application reflects the Court's commitment to protecting
individual liberties and ensuring that the government
cannot unjustly discriminate or limit essential freedoms.
While the standard is demanding and often leads to the
invalidation of laws, it serves as a critical safeguard against
government overreach and the erosion of civil rights.
Conclusion. The role of scrutiny levels in
equal protection jurisprudence The levels of scrutiny, rational
basis review, intermediate scrutiny, and strict scrutiny
are central to the judiciary's role in enforcing the Equal
Protection clause. Each level reflects a different
degree of skepticism about the government's reasons for
enacting in particular law and the potential impact of the law
and individual rights. The level of scrutiny applied
can significantly influence the outcome of a case, with more
stringent standards like strict scrutiny providing stronger
protection for fundamental rights and suspect
classifications. Rational basis review is the
most deferential, allowing government's broad latitude to
enact laws that classify individuals based on
characteristics like age or economic status, as long as the
classification is rationally related to a legitimate
government interest. Intermediate scrutiny strikes a
balance between deference and protection, requiring a closer
connection between the law and an important government
interest, particularly in cases involving gender discrimination.
Strict scrutiny, the most demanding standard, is reserved
for laws that affect fundamental rights or involve suspect
classifications, ensuring that such laws are only upheld if
they are narrowly tailored to achieve a compelling government
interest. The judiciary's application of
these levels of scrutiny reflects the broader tension
between protecting individual rights and respecting
legislative judgment. While the courts play a crucial
role in ensuring that the government does not unjustly
discriminate or infringe on essential freedoms, they must
also balance this role with a recognition of the complexities
and challenges that lawmakers face in addressing societal
issues. As the Equal Protection Clause
continues to be a focal point of constitutional litigation, the
levels of scrutiny will remain key tools in the judiciary's
efforts to interpret and enforce the principles of equality and
justice. 2 Discrimination and Affirmative Action Introduction
This chapter explores 2 critical aspects of equal protection
jurisprudence, the legal frameworks developed to combat
discrimination, and the contentious issue of affirmative
action. The discussion will delve into
the various forms of discrimination that have been
addressed by the courts, the legal standards applied to these
cases, and the evolution of affirmative action policies in
the United States. Through an examination of key
cases and controversies, this chapter will provide a
comprehensive understanding of how the Equal Protection Clause
continues to shape American Society.
The Equal Protection Clause is central to the legal efforts to
address discrimination and ensure that individuals are not
treated unfairly based on characteristics such as race,
gender, or ethnicity. Over the years, the courts have
developed different levels of scrutiny to analyze whether
government actions or laws that classify individuals violate the
Equal Protection Clause. These levels of scrutiny,
rational basis review, intermediate scrutiny and strict
scrutiny are applied depending on the nature of the
classification and the rights involved.
A Discrimination and the Equal Protection Clause.
Discrimination based on certain characteristics has been a
primary focus of equal protection jurisprudence.
The courts have categorized these characteristics into
different classifications, with a level of scrutiny applied
varying based on the classification.
The most critical areas of discrimination addressed under
the Equal Protection Clause include race, gender, and other
classifications such as age, disability, and sexual
orientation. One.
Race Discrimination, Historical Context and Development Race
discrimination has been a central issue in American
history, from the institution of slavery to the era of
segregation and the ongoing challenges of racial inequality.
The Equal Protection Clause has served as a vital tool in the
fight against racial discrimination, particularly in
the context of laws and government actions that classify
individuals based on race. The Supreme Court has
consistently applied strict scrutiny to race based
classifications, requiring the government to demonstrate a
compelling interest and to ensure that the law is narrowly
tailored to achieve that interest.
Key Cases Brown V Board of Education 1954 The Supreme
Court's landmark decision in Brown V Board of Education,
overturned the separate but equal doctrine established in
Plessy V Ferguson 1896 and struck down racial segregation
in public schools. The Court held that segregated
schools were inherently unequal and violated the Equal
Protection Clause, thus dismantling the legal foundation
for racial segregation in education and other public
services. The decision in Brown marked a
significant shift in the Court's approach to race discrimination,
emphasizing that racial classifications would be subject
to the most rigorous judicial scrutiny.
The case set the stage for the civil rights movement and
subsequent legislation aimed at eradicating racial
discrimination in all areas of American life.
Regions of the University of California V Baki, 1978.
In Baki, the Supreme Court addressed the issue of race
based affirmative action in college admissions.
The case involved Alan Baki, a white applicant who was denied
admission to the University of California, Davis School of
Medicine despite having higher test scores than some of the
minority applicants who were admitted under a special
admissions program. The court held that while racial
quotas were unconstitutional, race could be considered as one
factor among many in the admissions process.
This decision established the framework for evaluating
affirmative action policies under the Equal Protection
Clause, balancing the need to address past discrimination with
the prohibition against racial classifications.
The impact of Strict Scrutiny Strict scrutiny is the highest
level of judicial review applied to race based classifications.
Under this standard, the government must show that the
classification serves a compelling state interest and
that the means chosen are narrowly tailored to achieve
that interest. This rigorous standard reflects
the Court's recognition of the historical and ongoing impact of
race discrimination and its commitment to ensuring that any
racial classification by the government is justified by the
most pressing and legitimate concerns.
However, the application of strict scrutiny has also led to
significant debates, particularly in the context of
affirmative action, where the goal of promoting diversity in
education and employment is weighed against the principle of
non discrimination. The Court's decisions in cases
like Baki and Gruder V. Bollinger 2003 illustrate the
complexity of these issues and the challenges of balancing
competing constitutional values. Ongoing Challenges and
Controversies Race discrimination remains a
pervasive issue in American Society, and the courts continue
to grapple with cases involving racial profiling, voting rights,
and access to education and employment.
While the Equal Protection Clause has been instrumental in
dismantling formal barriers to racial equality, informal and
systemic forms of discrimination persist, raising new legal and
policy challenges. For example, cases involving
racial gerrymandering, where electoral districts are drawn to
dilute the voting power of racial minorities, have
highlighted the ongoing struggle for racial equality in the
political process. Similarly, issues related to
racial disparities in criminal justice, housing, and healthcare
continue to be areas of concern, with the courts playing a
critical role in addressing these disparities through the
lens of the Equal Protection Clause. 2 Gender Discrimination
Historical Context and Development Gender
discrimination has been another significant area of equal
protection jurisprudence, particularly as the legal system
has evolved to recognize the full equality of women under the
law. For much of American history,
women were subjected to legal and societal discrimination,
often justified by traditional notions of gender roles.
The Equal Protection Clause has been a crucial tool in
challenging these discriminatory practices and advancing gender
equality. The Supreme Court typically
applies intermediate scrutiny to gender based classifications,
requiring the government to show that the classification is
substantially related to an important government interest.
This standard reflects the Court's recognition that while
gender is not treated with the same level of suspicion as race,
it still warrants a heightened level of judicial review due to
the history of gender based discrimination.
Key cases Frontiero V Richardson, 1973.
In Frontiero, the Supreme Court struck down a federal law that
required female military members to prove their husband's
dependency to receive benefits, while male members wives were
automatically considered dependents.
The court found that the gender based classification was based
on outdated and stereotypical notions of gender roles, and it
applied heightened scrutiny to the law.
The decision in Franiera was significant because it marked
one of the first instances where the court explicitly recognized
that gender based classification should be subject to a more
rigorous standard of review. The case laid the groundwork for
subsequent decisions that would further solidify the legal
framework for addressing gender discrimination under the Equal
Protection Clause. United States V Virginia, 1996.
United States V Virginia is one of the most important gender
discrimination cases in equal protection jurisprudence.
The Supreme Court struck down Virginia's exclusion of women
from the Virginia Military Institute, BMIA state funded
military college that had historically admitted only men.
The Court applied intermediate scrutiny and found that
Virginia's justification for the gender based exclusion
preserving the unique character of VM is educational model did
not meet the required standard. The Court emphasized that gender
based classifications must be supported by an exceedingly
persuasive justification and cannot be based on over broad
generalizations about the abilities or roles of men and
women. The decision in Virginia
underscored the Court's commitment to gender equality
and its willingness to strike down laws and practices that
perpetuate gender discrimination.
The role of intermediate scrutiny.
Intermediate scrutiny applied to gender based classifications
requires the government to demonstrate that the
classification is substantially related to an important
government interest. This standard is less demanding
than strict scrutiny, but more rigorous than rational basis
review, reflecting the Court's view that gender
classifications, while not inherently suspect, still
warrant careful judicial examination.
The application of intermediate scrutiny has led to significant
progress in the fight against gender discrimination,
particularly in areas such as employment, education and family
law. However, the standard has also
been the subject of debate, with some critics arguing that it
does not provide sufficient protection against gender
discrimination and that gender should be treated as a suspect
classification, subject to strict scrutiny.
Ongoing Challenges and Controversies Gender
discrimination continues to be a significant issue in American
Society, with ongoing legal challenges related to pay
equity, reproductive rights, and workplace discrimination.
The courts have played a crucial role in advancing gender
equality, but significant disparities and barriers remain.
One of the most contentious areas of gender discrimination
lies reproductive rights, where the intersection of gender
equality and individual autonomy has led to deeply polarized
debates. Cases involving access to
contraception, abortion, and reproductive healthcare have
highlighted the ongoing struggle for gender equality, a legal
landscape that is continually evolving.
Another area of concern is the under representation of women in
certain sectors of the workforce, particularly in
leadership roles and traditionally male dominated
industries. While legal protections against
gender discrimination in employment have improved,
challenges related to implicit bias, workplace culture, and
structural barriers continue to impede progress toward full
gender equality. 3 Discrimination based on other
classifications Age, disability and sexual orientation The Equal
Protection clause also addresses discrimination based on other
classifications such as age, disability and sexual
orientation. The level of scrutiny applied by
the courts varies depending on the classification, with
rational basis review typically applied to non suspect
classifications like age and disability, and a more rigorous
standard sometimes applied to classifications based on sexual
orientation.