Welcome back to the Deep Dive. Today we are tackling a monster.
We really are. And I mean that in, you know,
the best possible way, but also in the most terrifying way for
anyone staring down a final exam.
Absolutely. We are looking at what is
probably the single most significant sentence in American
constitutional law. It's the weapon of choice for
civil rights. It's the battleground for
everything from school segregation to marriage
equality. And let's just be honest, it's
the section of the exam that causes the most anxiety.
It is. We are talking about the equal
protection clause of 14th Amendment, and you're right to
call it a monster if you're a law student.
This is it. This is the main event.
It's the whole game. It's the engine of modern
constitutional rights. But, and this is the really
tricky part, the doctrine itself feels intuitive on one hand, but
in practice it's incredibly rigid.
It's formulaic. Right, because on a gut level,
equal protection just sounds simple.
Yeah, treat everyone the same. Exactly.
If the government treats me differently than it treats my
neighbor, that feels unfair. My brain immediately says that's
an equal protection violation. That's the right human instinct.
That's the student perspective. But if you write it feels unfair
on a bar exam answer, you're going to get 0 points right?
The Supreme Court doesn't just ask is it fair?
They've built this massive tiered machine to process these
claims. So our mission today is to take
that intuition, that sense of fairness, and translate it into
the specific point scoring legal analysis that courts actually
use. We've got to move from this is
wrong to this fail strict scrutiny because it's not
narrowly tailored to a compelling state interest.
And we have a pretty formidable stack of sources to help us do
that. We have the foundational cases,
of course, the big names. We've also got our episode
guide, which is our road map. But what I'm really interested
in are some of these newer pieces, like one on affirmative
algorithms, that draft this 1868 amendment right into the age of
AI. And that's so important because
it shows this isn't some dead historical concept.
It's alive and it's evolving, but before we get to the cutting
edge, we have to build the foundation.
You have to start with the text. You have to start with the text.
Let's do it. 14th Amendment. No state shall deny to any
person within its jurisdiction the equal protection of the
laws. OK, stop right there.
The 1st 2 words state no state. This is critical for any exam.
The 14th Amendment, by its own text, applies only to the States
and their subdivisions, like cities or state universities.
Which seems like a massive loophole.
It does. Does that mean Congress or the
FBI can just discriminate however they want?
No, but the legal pathway is different, and this is a classic
exam trap. In a case called Bowling V
Sharp, which was actually the DC school desegregation case
decided the same day as Brown V Board, the court did something
clever, OK? They said that the 5th
Amendment's due process clause, which does apply to the federal
government, has an equal protection component sort of
baked into it. They call this reverse
incorporation. Reverse incorporation O for the
person writing an answer. What's the bottom line?
The bottom line is the analysis is identical.
The tiers of scrutiny, the tests, everything is the same.
But if the fact pattern involves Congress or a federal agency,
you must cite the 5th Amendment. If you cite the 14th, you're
losing points. You're losing easy points.
It's a technicality, but you know, law schools built on
technicalities. OK, noted.
So we've got the text now. What does equal protection
actually mean? You said it's not just treat
everyone identically. Right.
I mean, think about it. The government classifieds
people all the time. All the time.
We let 20 year olds drive but not drink alcohol.
We tax people with high incomes at a different rate.
We don't give driver's licenses to people who are legally blind.
These are all classifications. The equal protection clause
simply says that people who are similarly situated have to be
treated alike. So the whole game is about
justification. The whole game is asking, is the
government's reason for drawing this line good enough?
And this is where we get into the tiers of scrutiny.
This is the mental road map, we promise.
This is the Holy Grail of the subject.
The court has developed this tiered approach, and the level
of justification the government has to provide depends entirely
on who they are classifying. If you can figure out the right
tier, you can almost always predict the outcome of the case.
OK, so let's walk through them, starting at the top, the highest
mountain to climb Tier 1 strict scrutiny.
Strict scrutiny. This is the highest bar in
constitutional law. It gets triggered when the
government makes a classification based on a
suspect classification. And what's on that list?
The big three are Race, National Origin and Alienage, though
Alienage has some big asterisk we need to talk about.
It also gets triggered if a law, any law, burdens of fundamental
right like the right to vote, the right to travel between
states, things like that. And if a law gets put into that
bucket, what does the government have to prove?
The burden of proof immediately shifts to the government and it
is a crushing burden. They have to prove that the law
is narrowly tailored to achieve a compelling state interest.
Let's break those terms down. Compelling sounds like more than
just a good idea. It's way more think national
security in wartime, think preventing anarchy.
It has to be something absolutely vital.
And narrowly tailored. That means there's no other way
to achieve the goal. It has to be the least
restrictive, most precise tool available.
If there's any other way to do it that's less discriminatory,
the law fails. It's basically impossible to
pass. There's a famous phrase from a
legal scholar, Gerald Gunther, he said.
Strict scrutiny is strict in theory, but fatal in fact.
Fatal, in fact. If you're the government and the
court says strict scrutiny, you're almost certainly going to
lose. You mentioned wartime, and that
brings up the one very tragic historical exception.
It does Korematsu the United States World War 2, the
internment of Japanese Americans.
It's a dark moment, and what's so ironic is that this was the
very case where the court first said race is a suspect
classification that requires the most rigid scrutiny.
And then they upheld. It and then they upheld it.
They accepted the government's claim of military necessity as a
compelling interest. It's, I mean, it's universally
condemned today. The court has basically disowned
it. But it still stands as the rare,
tragic example of a law surviving this test.
OK, so that's the top tier. Let's jump all the way to the
bottom before we hit the middle Tier 3 rational basis review.
This is the default. It's the catch all category.
If the classification isn't based on race, gender, or one of
the other special categories, it lands here.
So what are we talking about? Age.
Age, disability, wealth, poverty, sexual orientation, and
historically anyway, all of those are classic rational basis
classification. And how does the test change?
It flips completely. Now the burden is on the
plaintiff, the person challenging the law.
And what do they have to prove? They have to prove that the law
is not rationally related to any legitimate government interest.
And legitimate is a pretty low bar.
It's the floor. Health, safety, public morals,
saving money, administrative convenience, almost anything a
legislature could think of is considered legitimate.
So the government doesn't even have to prove the law works.
Not at all, and this is the real kicker.
The government doesn't even have to prove they passed the law for
that legitimate reason. The court will do the work for
them. What do you mean?
In a case called Williamson V Optical, the court said it's
enough that the legislature might have had a rational
reason. The court will literally
hypothesize reasons if they can imagine one possible scenario
where the law makes sense law stands.
So if strict scrutiny is fatal, in fact, rational basis is.
Usually, when in fact for the government, it's incredibly
deferential. The government almost always
wins. Which leaves us with a middle
ground Tier 2 intermediate scrutiny.
The middle child? Exactly.
This standard was developed largely to deal with
classifications based on gender and illegitimacy, that is,
discriminating against children born out of wedlock.
OK. And what's the test here?
It's right in the middle. The government has the burden of
proof and they have to show the law is substantially related to
an important governmental objective.
So the interest has to be important, not compelling.
Right. And the connection has to be
substantial, not narrowly tailored.
It's tougher than rational basis, for sure, but it gives
the government a little more breathing room than strict
scrutiny. OK, so there's the road map.
Suspect class equals strict, quasi suspect like gender equals
intermediate and pretty much everything else gets rational
basis. That's the framework.
Now I want to do what we promised, which is a real deep
dive into these categories because the sources we have
suggest it's not always so clean.
Let's start back at the top with race and strict scrutiny.
Perfect, because this is the core of the 14th Amendment.
It was written after the Civil War specifically to address
racial discrimination against newly freed slaves.
Early cases like Stratter View, West Virginia, which struck down
a law that banned black men from serving on juries, made that
purpose crystal clear. And how has that evolved into
the modern doctrine? Today the doctrine is really
dominated by what's called the Anti Classification principle.
Color blindness. Essentially, yes.
The modern court views the equal protection clause as demanding
that the government may be color blind.
It can't classify people by race, period.
Which brings us directly to the biggest battleground on this
topic for the last 50 years, affirmative action.
It really has been for a long, long time.
Under cases like Gretter V Bollinger, the court said that
achieving diversity in higher education was a compelling
interest. So universities could consider
race. They could use it as one plus
factor among many in a holistic review of an applicant.
But, and this was key, it couldn't be mechanical.
A different case, Grassi V Bollinger, struck down a system
where the university just gave every minority applicant an
automatic 20 points. So a holistic plus factor was
OK, but a quota or a point system was not.
Exactly. But that entire landscape has
shifted dramatically. With the recent Students for
Fair Admissions case against Harvard and UNC.
Drastically. In that case, the court
essentially said that the educational benefits of
diversity, while laudable, are too amorphous to justify an
explicit racial classification. They basically dismantled the
greater framework. The era of race conscious
admissions as we knew it is, for the most part, over.
This connects directly to that fascinating paper we have from
the Stanford Reg Lab, Affirmative algorithms, Because
this feels like where the next battle.
Is it is. We're using AI and algorithms to
make huge decisions, hiring loan applications, even policing, and
there's a fundamental tension in the law here.
A tension between. Between anti classification,
which says you cannot look at race, and anti subordination
which says you must fix the racial disparity, they often
point in opposite direction. OK, explain that.
So let's say a bank uses an algorithm for mortgage
applications, and because of historical data, that algorithm
ends up denying loans to black applicants at a much higher
rate. That's a disparity, right?
Now, a programmer might say, let's fix this.
Let's create an affirmative algorithm.
We'll tell the code to explicitly adjust its criteria
to make sure it approves more loans for minority applicants to
fix the imbalance. The paper calls this seeking
statistical parity. That sounds fair.
It sounds like a good thing. It sounds fair, but under
current equal protection doctrine, what did that
programmer just do? They use race.
They used an explicit racial classification, they told the
machine treat applicants differently based on race to
achieve a balanced outcome that triggers strict scrutiny.
And trying to fix societal discrimination is probably not
going to be seen as a compelling interest by this court.
Almost certainly not. So the very act of trying to
make the AI fair becomes unconstitutional.
It's what the authors call a fatal collision.
The doctrine is at war with the goal of equity.
That's a complete paradox. The law designed to prevent
discrimination is preventing us from fixing discrimination.
It is, at least when it comes to these new technologies.
It's a huge unresolved problem. Let's pivot to the other big
suspect class, the one you said had asterisks, alienage or non
citizens. Right, so the general rule is
that legal aliens, people who are in the country lawfully but
aren't citizens, are a suspect class.
If a state passes a law saying non citizens can't get welfare
benefits that get strict scrutiny, the state will almost
always lose. That's a case called Graham V
Richardson. OK, so that's the general rule.
What are the asterisks? Two huge exceptions.
First is the political function exception.
What's that? If the job or the role involves
the process of democratic self governance, a state can
discriminate against non citizens and the standard drops
all the way down to rational basis.
So what kind of jobs are we talking about?
The court has said police officers, probation officers and
even public school teachers. Wait, a state can ban a legal
resident from being a public school teacher?
Yes. The court's logic in a case
called Ambac V Norwick was that teachers play a critical role in
shaping the civic values of students, and that's part of
self governance. That seems like a stretch.
It's very debatable and there are weird lines.
The court said states can't ban non citizens from being notaries
public. A notary is just a clerical job,
it doesn't involve governing. OK, so that's the first
exception. What's the second?
The second is all about who is doing the discriminating.
If it's the federal government, not a state, the standard is
only rational basis. Why the difference?
Because the Constitution gives Congress plenary power over
immigration and naturalization, the Court is extremely
differential to the federal government in this area.
So a federal law restricting Medicare for aliens was upheld
in Matthews VDS. So for an exam you have to ask 2
questions. Exactly 1 Is this the state or
the feds? And two, if it's the state, does
the political function exception apply?
Get either one wrong and you're in a wrong tier A.
Classic trap. OK, let's move down the ladder
to intermediate scrutiny, and the big one here is gender.
Right. And this is really the story of
Ruth Bader Ginsburg's career as a lawyer before she was a
justice. Before the 1970s, gender
discrimination was just reviewed under rational basis.
And the courts upheld everything.
Everything laws barring women from being bartenders, from
being lawyers. The reasoning was paternalistic
and based on stereotypes. Then, in 1971, came Reed V Reed.
What happened there? It was a simple case.
An Idaho law said that if a man and a woman were equally
entitled to administer a deceased persons estate, the
male must be preferred. Just an automatic preference for
men to avoid a hearing. And the court struck it down.
For the first time ever, yes, they said it was arbitrary.
They still called it rational basis, but is the beginning of
the end. The standard was officially born
a few years later in Craig V Boring.
That's the famous beer case, right?
It is Oklahoma had a law that allowed women to buy 3.2% beer
at age 18, but men had to wait until they were 21.
And what was their justification?
They had statistics. Their data showed that young men
between 18 and 20 were arrested for drunk driving way more often
than young women. So they had a real world reason.
They did, but the Supreme Court said the connection wasn't
strong enough. It wasn't substantially related
to the goal of Traffic Safety, and that's where intermediate
scrutiny was officially established for gender
classifications. But I've seen a different phrase
used in later cases, something that sounds even tougher.
Exceedingly persuasive justification.
You have That comes directly from the landmark VMI case
United States V Virginia. The Military Academy.
Right. The Virginia Military Institute
was an all male public military college.
They argue that their unique adversative method, this
intense, aggressive training style, just wouldn't work with
women. And they offered to create a
separate program for women as a compromise.
They did a separate leadership institute that was by all
accounts not nearly as good, and the court, in an opinion by
Justice Ginsburg, was not having it.
What did she say? She said the government's
justification must be exceedingly persuasive, and you
can't justify these rules based on archaic and overbroad
generalizations about the talents or roles of men and
women. Even if most women wouldn't want
the VMI experience, you can't exclude the ones who can and do.
So that phrase, exceedingly persuasive it seems to ratchet
up the standard. Many scholars believe it pushed
intermediate scrutiny for gender much closer to strict scrutiny.
It's a very, very hard test for the government to pass today.
So are there any gender distinctions that the court
allows? Very few.
The major area where they have is when the law is based on what
the court sees as real biological differences between
the sexist, not stereotypes. It's an example of that.
The case of Naqui and VINS. It involved a law that made it
easier for a child born abroad to an unmarried American mother
to get citizenship than to a child born to an unmarried
American father. The court upheld it.
Their logic was that the mother's relationship to the
child is biologically verifiable at birth.
The father's is not necessarily so.
They said the different rules were justified by the goal of
ensuring a real parent child relationship exists.
It's a controversial decision, but it shows the line the court
tries to draw. Biological reality, yes.
Stereotype No. OK, that makes sense.
Let's head down to the basement rational basis.
You said this is the catch all for things like age, wealth and
disability. Correct.
And these are some of the most frustrating cases for people who
care about social justice. The court has flatly refused to
make poverty A suspect class. So laws that disproportionately
harm the poor get very little scrutiny.
Very. Little and Dandridge V Williams,
they upheld a state's cap on welfare benefits no matter how
many children were in the family.
In San Antonio V Rodriguez, they upheld a school funding system
based on local property taxes, even though it created massive
inequalities between rich and poor districts.
And the reasoning was. As long as there was some
rational reason, like giving communities local control over
their schools, the inequality is constitutional.
What about age? Same story a case called
Massachusetts Board of Retirement V Mergia, a state law
for state police officers to retire at age 50.
The court said that's fine. It's rational to assume that
physical fitness generally declines with age.
Even if a particular 50 year old officer is in perfect shape.
Exactly. Rational basis tolerates
imperfection. It doesn't have to be a perfect
fit. But then we have the case of
City of Claiborne. This case feels like a glitch in
the system. It's about disability, which you
said is rational basis, but the government actually lost.
How did that happen? This is one of my absolute
favorite cases because it shows the court has a pulse.
It shows that the tears aren't completely mindless.
So the city of Cleburne, TX had a zoning ordinance.
It required a special use permit for a group home for the
intellectually disabled, but it didn't require a permit for
apartment buildings, frat houses or nursing homes.
Which makes no sense at all. It's completely irrational.
The challengers asked the court to make disability a suspect or
quasi suspect class. The court explicitly refused.
They said no. The standard is rational basis.
But then they struck the law down.
They struck it down anyway, and this is the key.
They actually looked at the city's stated reasons.
The city said they were worried about the residents being
harassed by students from a nearby school, and they were
concerned about its location on a floodplain.
And the court dismantled those reasons.
One by one they said, well, the school is also next to the
nursing home so that can't be it, and lots of other buildings
are in the floodplain, so that can't be it either.
They concluded that the only real motivation behind the law
was irrational prejudice and fear on the part of the
neighbors. So they applied rational basis,
but they didn't just invent A hypothetical reason like they
did in the Lee Optical case. Precisely this is what scholars
call rational basis with BITE, and it established A crucial
principle. A bare desire to harm or animus
towards a group is never a legitimate government interest.
This idea of animus is the perfect bridge to our next
topic, sexual orientation, because for decades gay rights
cases just didn't fit neatly into the three tiers.
They didn't. And to be clear, the Supreme
Court has never officially held that sexual orientation gets
strict or intermediate scrutiny. So technically it's still a
rational basis. Technically yes, but every major
gay rights victory from Roemer to Windsor to Oberfell has been
decided using this rational basis with BITE or a blend of
equal protection and due process ideas.
Let's start with Roemer V Evans. This was 1996.
The voters of Colorado approved an amendment to their state
constitution, Amendment 2, that prevented any city or town from
passing laws that protected gay and lesbian people from
discrimination. So it was a law banning anti
discrimination laws. Exactly.
And Justice Kennedy, writing for the court, didn't create a new
tier. He just said look at what this
law does. It identifies a single group and
makes them unequal to everyone else.
He said it was inexplicable by anything but animus, a bear
desire to harm a politically unpopular group.
And since a desire to harm isn't a legitimate interest, the law
fails even the lowest possible test.
You've got it. That same logic continued in
United States V Windsor, the case that struck down the
federal Defense of Marriage Act. DOMA.
Right. The federal government was
refusing to recognize state sanctioned gay marriages for
federal purposes like taxes. And again, the court said this
law's purpose was to demean the couple and humiliate their
children. It was rooted in Animus.
We have this fascinating article that argues this entire
approach. This more flexible, animus
focused review actually goes back to Justice Thorgood
Marshall. It's a brilliant connection.
Marshall always hated the rigid 3 pier system.
He thought it was a shell game. In his famous dissents in cases
like Dandridge and Rodriguez, the welfare in school funding
cases, he argued for what he called a sliding scale.
A sliding scale instead of three.
Buckets. Exactly, He said.
The court should look at two things on a spectrum.
One the nature of the classification.
Is it based on a trait someone can't control and to the
importance of the interest being affected?
Is it just a business regulation or is it something fundamental
to a person's life? And if you look at the big gay
rights cases, they feel a lot more like Marshall sliding scale
than a rigid tear. They do.
When you read Justice Kennedy's opinion in Obergefell, the
marriage equality case, he doesn't say this is Tier 2 or
this is Animus. He talks about the synergy
between the liberty interest from due process and the
equality interest from equal protection.
He talks about the fundamental importance of marriage and the
dignity of the couples. It's a much more holistic
analysis. It's effectively A sliding scale
because the right to marry is so fundamental and the
classification is so invidious. The government's justification
just isn't good enough, regardless of what tier you
formally put it in. Which is a great segue to what
is maybe the hardest part of this for an exam.
What do you do when the discrimination isn't obvious?
When the government isn't dumb enough to write?
We hate this group in the law. Right.
We've been talking mostly about facial discrimination, a law
that on its face draws a line based on race or gender.
No women allowed. That's the easy question.
The hard question is the facially neutral law, the law
that doesn't mention a protected group at all but has a
discriminatory effect. Exactly.
Let's say a city requires all firefighter applicants to be at
least 5 foot 10 and weigh 180 lbs.
The law doesn't say no women, but it's going to screen out a
huge number of female applicants.
That's called disparate impact. And here is the single most
important and often heartbreaking rule for law
students to learn. Disparate impact alone is not an
equal protection violation. Hey, say that again, even if the
numbers are overwhelming. Even if the stats show 99% of
the people excluded are from one racial group, this is the
holding of a huge case called Washington V Davis.
So what happened in that case? It involved a written aptitude
test for becoming a police officer in Washington, DC Black
applicants failed the test at a much, much higher rate than
white applicants. The impact was undeniable.
But the court upheld it. They did, the court said.
The Constitution's guarantee of equal protection is about
preventing discriminatory purpose or intent, not just
preventing discriminatory results.
So if the government's motive was neutral, it's OK.
If their intent was neutral, we just want verbally skilled cops
and this test measures that, then the fact that it has a
racist outcome is, from a constitutional perspective,
irrelevant. So you have to prove not just
what the law did, but what the lawmakers were thinking.
That seems almost impossible. It's incredibly difficult, but
the court gave us a road map in a later case, Village of
Arlington Heights V Metropolitan Housing Development Corps.
OK, what's the road map? The court laid out a series of
factors to look at to find circumstantial evidence of
intent, things like the historical background of the
decision. Was the town historically
segregated? Exactly.
Or were their departures from the normal procedure?
Did the City Council suddenly change the zoning rules without
the usual public hearings right after a minority housing project
was proposed? You can also look at the
legislative history statements made by lawmakers.
So you have to be a detective piercing together clues.
You really do. And sometimes the sheer
magnitude of the impact can be a clue itself.
Like in a very old case, Yik Woah, where a San Francisco
ordinance about laundries was denied to 200 Chinese applicants
but granted to virtually every white applicant at some point.
The numbers are so stark they raise an inference of purpose.
But the bottom line for an exam is critical.
It is. If your fact pattern gives you
statistics showing a disparate impact, but gives you no
evidence of a discriminatory purpose, you must apply rational
basis review. If you jump to strict scrutiny
just because of the numbers, you will lose all the points.
This brings me right back to the affirmative algorithms problem
we talked about earlier. We're moving into a world where
an AI is making decisions based on thousands of data points, zip
codes, purchasing history, web browsing habits.
None of those are race on their face.
But they are highly correlated with race, they're proxies for
race, and AI can easily learn to replicate and amplify existing
societal biases without ever being told be racist.
So under Washington V Davis, that's just impact.
It's constitutional. It is unless you can prove the
programmer who designed the algorithm intended for it to
discriminate. The current equal protection
doctrine has no answer for AI bias.
It's a facially neutral policy with a discriminatory effect
which gets rational basis. But if the programmer tries to
fix it by telling the AI, hey make sure you lend to more
people in these zip codes to balance things out.
Now they've created an explicit classification based on a proxy
for race, and that will get hit with strict scrutiny.
It's the same trap. The doctrine protects passive
automated discrimination while attacking active intentional
fixes. It's the fatal collision the
authors wrote about. The law demands we find a human
with intentions intent. But in the age of big data, the
most profound discrimination might happen without any human
intent at all. It just happens through
correlation. That is a massive, massive
problem for the future of civil rights.
The 14th Amendment was written for 1868, interpreted by the
courts of the 1970s, and now it has to confront black box
algorithms. It absolutely raises the
question, will the court eventually have to evolve?
Will they have to abandon or modify the strict intent
requirement of Washington V Davis to deal with this new
reality? Or will they stick with it even
if it becomes obsolete? OK, so let's synthesize all of
this for the listener who has an exam next week.
We've covered a ton of ground. What is the step by step attack
outline? Here is the checklist you need
to have in your head. Step one, is there state action?
Is it the government doing it? Right.
If it's a private company, the 14th Amendment doesn't apply.
And remember if it's the feds use the 5th amendment but the
rules are the same. OK, step one.
Step 2. What is the classification?
Is it facial written right there in the law or is it a neutral
law that just has a disparate impact?
If it's the latter, you must then go on the hunt for
discriminatory intent using the Arlington Heights factors.
No intent, no case. No intent, it's rational basis
and the government wins. Step 3.
Select the tier. Race.
National Origin. Alien Edge.
Strict scrutiny. Gender illegitimacy.
Intermediate scrutiny. And everything else.
Age, wealth, disability, sexual orientation.
Rational basis. OK, then Step 4.
Apply the actual test. Yep.
For strict it's compelling interest plus narrow tailoring,
the government usually loses. For intermediate it's important
interest plus substantial relation the government often
loses, and for rational it's legitimate interest plus
rational relation the government usually wins.
Unless you find the wild card, the animus.
The animus. If you can show the government
is just being cruel, a bare desire to harm, then even
rational basis won't save them. That is the lesson of Clayburn
and Romer. So the tears provide the
structure, but the court's sense of basic decency, of sniffing
out hatred, is the safety valve. That's a great way to put it.
We have covered so much the text, the history, the rigid
tears, and the really messy reality of how this all works
today. It is, like we said at the
beginning, a monster of a topic. It is, but it's also the tool
that defines who we are. It's the constitutional promise
that the government can't just pick winners and losers, can't
just play favorites without a very, very good reason.
And the definition of a very good reason keeps changing.
It does, and that's what keeps this area of law so vital.
I want to leave our listener with that final provocation
about the algorithms because it's just so important.
We are moving into an era where discrimination might become
invisible. It could be buried in code,
completely facially neutral, and lack any discernible human
intent. If Washington V Davis says
that's constitutionally OK, does the equal protection clause
still have teeth? Or does the entire doctrine need
a software update? That is the question for the
next generation of lawyers and judges.
The doctrine is perfectly clear on what happens when a
legislature passes a racist law. It is completely, utterly
unclear what happens when a neural network creates a racist
outcome. Something to think about the
next time you apply for a loan or even just see a job posting
in your social media feed. Thank you for joining us on this
deep dive into the equal protection clause.
Go ace that exam. Good luck everyone, see you next
time. All right, let's talk about
fairness. Specifically, what does it mean
for the law itself to be fair? This is the huge, complicated
question right at the heart of the Constitution's equal
protection clause. Now, if you're gearing up for a
constitutional law exam, you absolutely have to nail this
topic. So today we're going to build
the exact analytical framework you'll need to tear apart any
equal protection problem. They throw at you.
Everything, and I mean everything, starts right here
with these words. This is the bedrock.
But what does equal protection really mean on the ground?
Well, think of it as the Constitution's way of saying the
government can't just draw lines between people for no good
reason. It's a core promise that
similarly situated people will be treated alike by the law.
So you probably notice the text says no state shall.
Which immediately begs the question, right?
What about the federal government?
Can it discriminate? Well, this is where a really
clever piece of legal footwork called reverse incorporation
comes into play. And bowling versus Sharp.
The Supreme Court basically said, look, it would be
absolutely unthinkable for the feds to have more power to
discriminate than the states. So they found a way to read
those same equal protection principles into the 5th
Amendment's due process. This clause.
Here's the exam take away. Whether it's a state law or a
federal law, the analysis is exactly the same.
Don't get tripped up by OK, here's our game plan.
We are going to walk through this step by step exactly how a
court would, which is how you need to structure your exam
answers. We'll start with the big picture
idea, the equality mandate, and then hit the absolutely critical
intent requirement. From there, we'll dive into the
three tiers of review, strict, intermediate, and the default
rational basis. And we'll finish with a really
interesting exception when that supposedly weak rational basis
standard actually has some teeth.
OK, First things first. Before you can even think about
which level of scrutiny to apply, there is a massive hurdle
that every equal protection challenge has to clear.
This is not negotiable. The person challenging the law
has to prove that the government intended to discriminate.
Now listen up, because this is a classic exam trap.
You have to know the difference between a law's effect and its
purpose. Let's say a city passes a law
requiring all police officers to pass a physical test that
includes a £500 bench press. That law looks neutral on its
face, right? But it's effect will be to
exclude far more women than men. That's called disparate impact.
But, and this is the key, that's not an equal protection
violation on its own. You'd have to prove the City
Council passed that law because they wanted to keep women off
the force. And the big case here, the one
you need to cite, is Washington V Davis.
It lays down the rule you need proof of discriminatory intent.
The challenger has to show the government acted because of, not
just in spite of, the law's discriminatory effect.
If you can't prove that purpose, your claim dies right there and
the law gets reviewed under the easiest standard to pass, which
we'll get to in a So let's say the challenger can prove intent.
Or maybe the law just says right on its face, this rule applies
to people of a certain race. Once we've got that, the whole
analysis shifts. Now we ask, how hard should we
look at this law? This brings us to the tiers of
scrutiny, and we're starting at the top of the mountain with the
most demanding, most difficult test there is strict scrutiny.
This table is basically your exam checklist.
Strict scrutiny gets triggered when a law makes a
classification based on what we call a suspect class.
And for your exam, that's race, national origin, and sometimes
alienage. Or when a law burdens A
fundamental right. For the law to survive this, the
government has to prove 2 incredibly difficult things.
One, its goal must be compelling, not just important
but absolutely vital. And two, the law has to be
narrowly tailored, meaning there is no other less discriminatory
way to achieve that goal. And look who has the burden of
proof. It flips completely to the
government. Loving V Virginia is the
textbook example. The state had a law that flat
out banned interracial marriage. It was a classification based on
race. So boom, strict scrutiny.
The court then asked Virginia, OK, what's your compelling
interest here? And the state's justification?
This idea of racial purity was found to be completely
illegitimate, let alone compelling.
The law couldn't even get past the first part of the test.
This is why you'll often hear that strict scrutiny is strict
in theory, but fatal. In fact, almost nothing survives
it. OK, So what about
classifications that are a little different?
Classifications that have a history of causing
discrimination, but maybe not in the same way as race.
For these, which the court calls quasi suspect classifications,
we step down a level to a middle ground, intermediate scrutiny.
It's not a free pass, but it's not the death sentence of strict
scrutiny either. This level of review is
triggered by laws that classify based on gender or on whether a
person was born to married parents.
Now look at the language here. The government's goal only has
to be important, not compelling, and the law must be
substantially related to achieving that goal.
A huge mistake students make on exams is mixing up important and
compelling. They are legally distinct
standards so make sure you use the right one.
The classic case for this is Craig V Born.
Oklahoma had this weird law where women could buy beer at 18
but men had to be 21. The state said it's important
interest was Traffic Safety. OK, fair enough.
But when the court looked at the actual evidence, the statistics
on drunk driving, the link between gender and Duis was
incredibly weak. The fit just wasn't there.
The law wasn't substantially related to the goal of Traffic
Safety. So the court struck it down.
We've done the highest hurdle and the middle ground.
So what about everything else? All the other ways the
government classifieds people by age, by wealth, by disability,
by profession, they all fall into the default category.
And for these, we use the most lenient, most deferential
standard of them all, rational basis review.
With rational basis, the entire game flips on its head.
Now the burden is on the challenger to prove the law is
irrational, which is almost impossible to do.
The government's goal only needs to be legitimate, and pretty
much any health, safety, or welfare goal counts.
And the law just has to be rationally related to it.
The fit can be terrible. The law can be over inclusive.
Under inclusive, it doesn't matter.
The court will bend over backwards to uphold the law.
Take the old Railway Express case.
New York City wanted to reduce traffic distractions, so it
banned ads on the sides of trucks.
But it made an exception for trucks that were advertising
their own business. The challenger screamed.
That's irrational. A distracting ad is a
distracting ad. But the court just shrugged and
said close enough. And this case gives us a crucial
rule for rational basis. The government is allowed to
tackle a problem one step at a time.
The law doesn't have to be perfect.
OK, but is it really always a rubber stamp?
What if a law isn't based on race or gender, but it just
seems mean? What if it seems like it's based
on pure hostility toward a group?
This is where we find a fascinating little twist where
rational basis can actually have some bite.
So this leads us to the critical exception, what some people call
rational basis with bite. It forces us to ask, is any old
reason the government cooks up good enough?
Or are some reasons so bad, so illegitimate, that they fail
even this incredibly low standard?
And the answer is a clear yes, there is a line.
The Supreme Court has been very clear that a law motivated by
pure animus, which is just a fancy legal word for a bare
desire to harm a politically unpopular group, can never be a
legitimate government purpose. In other words, being a bully is
not a legitimate state interest. The case you absolutely have to
know for this is Roamer V Evans. Voters in Colorado passed a
state constitutional amendment that did something wild.
It banned any city or state agency from passing laws to
protect gay and lesbian people from discrimination.
The Supreme Court looked at this thing and said it was so broad,
so disconnected from any actual legitimate purpose, that the
only possible explanation for it was sheer hostility.
It was designed simply to make a whole class of people unequal.
And that, the court said, is the very definition of animus.
And a law born of animus automatically fails rational
basis review. And that leaves us with a really
interesting final thought. We've just walked through this
very rigid 3 tiered framework. But does this whole animus
doctrine suggest that something else is going on?
Does it show that when a law is just fundamentally unfair, when
it's just plain wrong, the court will find a way to strike it
down no matter what tier of scrutiny you're supposed to be
in? It suggests that maybe beneath
all the formal tests, there's just a bedrock judicial
commitment to fairness that sometimes shines through.
It's definitely something to chew on.