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Introduction
Legislation
frequently
involves making classifications that either advantage or disadvantage
one
group of persons, but not another. States allow 20-year-olds to
drive,
but don't let 12-year-olds drive. Indigent single parents receive
government financial aid that is denied to millionaires.
Obviously,
the Equal Protection Clause cannot mean that government is obligated to
treat all persons exactly the same--only, at most, that it is obligated
to treat people the same if they are "similarly circumstanced."
Over recent
decades, the
Supreme Court has developed a three-tiered approach to analysis under
the
Equal Protection Clause.
Most
classifications,
as the Railway Express and Kotch cases illustrate, are
subject
only to rational basis review. Railway Express upholds a
New
York City ordinance prohibiting advertising on commercial
vehicles--unless
the advertisement concerns the vehicle owner's own business. The
ordinance, aimed at reducing distractions to drivers, was
underinclusive
(it applied to some, but not all, distracting vehicles), but the Court
said the classification was rationally related to a legitimate end. Kotch
was a tougher case, with the Court voting 5 to 4 to uphold a Louisiana
law that effectively prevented anyone but friends and relatives of
existing
riverboat pilots from becoming a pilot. The Court suggested that
Louisiana's system might serve the legitimate purpose of promoting
"morale
and esprit de corps" on the river. The Court continues to
apply an extremely lax standard to most legislative
classifications. In Federal
Communications Commission v Beach (1993), the Court went so far
as to say that economic regulations satisfy the equal protection
requirement if "there is any
conceivable state of facts that could provide a rational basis
for the classification." Justice Stevens, concurring, objected to
the Court's test, arguing that it is "tantamount to no review at
all."
Classifications
involving
suspect classifications such as race, however, are subject to closer
scrutiny.
A rationale for this closer scrutiny was suggested by the Court in a
famous
footnote in the 1938 case of Carolene Products v. United States
(see box at left). Usually, strict scrutiny will result in invalidation
of the challenged classification--but not always, as illustrated by Korematsu
v. United States, in which the Court upholds a military exclusion
order
directed at Japanese-Americans during World War II. Loving v
Virginia
produces a more typical result when racial classifications are
involved:
a unanimous Supreme Court strikes down Virginia's miscegenation law.
The Court also
applies
strict scrutiny to classifications burdening certain fundamental
rights. Skinner
v Oklahoma considers an Oklahoma law requiring the sterilization
of
persons convicted of three or more felonies involving moral turpitude
("three
strikes and your snipped"). In Justice Douglas's opinion invalidating
the
law we see the origins of the higher-tier analysis that the Court
applies
to rights of a "fundamental nature" such as marriage and procreation. Skinner
thus casts doubt on the continuing validity of the oft-quoted dictum of
Justice Holmes in a 1927 case (Buck v Bell) considering the
forced
sterilization of certain mental incompetents: "Three generations of
imbeciles
is enough."
The Court
applies a middle-tier
scrutiny (a standard that tends to produce less predictable results
than
strict scrutiny or rational basis scrutiny) to gender and illegitimacy
classifications. Separate pages on this website deal with these
issues.
Levels of Scrutiny
Under the Three-Tiered
Approach to Equal Protection Analysis
1.
STRICT SCRUTINY (The government must show that the challenged
classification
serves a compelling state interest and that the classification is
necessary
to serve that interest.):
A. Suspect
Classifications:
1. Race
2. National
Origin
3. Religion
(either under
EP or Establishment Clause analysis)
4. Alienage
(unless the
classification falls within a recognized "political community"
exception,
in which case only rational basis scrutiny will be applied).
B.
Classifications Burdening
Fundamental Rights
1. Denial
or Dilution
of the Vote
2.
Interstate Migration
3. Access
to the Courts
4. Other
Rights Recognized
as Fundamental
2.
MIDDLE-TIER SCRUTINY (The government must show that the challenged
classification
serves an important state interest and that the classification is at
least
substantially related to serving that interest.):
Quasi-Suspect
Classifications:
1. Gender
2.
Illegitimacy
3.
MINIMUM (OR RATIONAL BASIS) SCRUTINY (The govenment need only show that
the challenged classification is rationally related to serving a
legitimate
state interest.)
Minimum
scrutiny applies
to all classifications other than those listed above, although some
Supreme
Court cases suggest a slightly closer scrutiny ("a second-order
rational
basis test") involving some weighing of the state's interest may be
applied
in cases, for example, involving classifications that disadvantage
mentally
retarded people, homosexuals, or innocent children of illegal
aliens.
(See "Should
the Rational Basis Test Have Bite?") |
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Do Equal Protection Principles Apply to the
Federal Government?
Note that the Fourteenth Amendment reads "No STATE shall deny to any person
within its jurisdiction the equal protection of the laws." Is the
federal government thus free to discriminate? Is it possible that
women could be denied positions in the Labor Department because of
their sex or that West Point could refuse to admit Hispanics? The
answer, which is not obvious as a constitutional matter, was provided
in Bolling v Sharpe (1954),
in which the Court found segregation in the public schools of
Washington, D.C. violated the Constitution. Chief Justice Warren
wrote:
"The Fifth
Amendment, which is applicable in the District of Columbia,
does not contain an equal protection clause as does the Fourteenth
Amendment which applies only to the states. But the concepts of equal
protection and due process, both stemming from our American ideal of
fairness, are not mutually exclusive. The "equal protection of the
laws" is a more explicit safeguard of prohibited unfairness than "due
process of law," and, therefore, we
do not imply that the two are
always interchangeable phrases. But,
as this Court has recognized,
discrimination may be so unjustifiable as to be violative of due
process."
Bolling
(and its so-called "reverse
incorporation") seems to leave open the possibility that
the Federal Government will be given, in some cases, more
flexibility than the states to draw legislative classifications.
Some commentators have argued, for example, that the Federal Government
should be free to adopt aggressive affirmative actions measures that
states would be prohibited by the Fourteenth Amendment from
adopting. Do you agree?
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The Equal Protection Clause of
the Fourteenth Amendment
No State shall...deny to any person within its jurisdiction the equal
protection
of the laws. |
Cases
Railway
Express v. New York (1949)
Kotch
v. Bd. of River Port Pilot Commissioners (1947)
Skinner
v. Oklahoma (1942)
Korematsu
v. United States (1944)
Loving
v. Virginia (1967)
Sign at World War II Relocation Center in
California.
Fred Korematsu
The Footnote
Footnote 4 of Carolene Products v.
United States
is often described as "the most famous footnote in constitutional
law."
The footnote, which appears in a case applying a presumption of
constitutionality
and applying minimal scutiny to an economic regulation, offered reasons
for applying more exacting scrutiny in certain other types of cases:
n4
There may be narrower
scope for operation of the presumption of constitutionality when
legislation
appears on its face to be within a specific prohibition of the
Constitution,
such as those of the first ten
amendments,
which are
deemed equally specific when held to be embraced within the
Fourteenth.
It is
unnecessary to consider
now whether legislation which restricts those political processes which
can ordinarily
be expected
to bring about repeal of undesirable legislation, is to be subjected to
more exacting judicial scrutiny under the general prohibitions of the
Fourteenth
Amendment than are most other types of legislation.
Nor need
we enquire whether
similar considerations enter into the review of statutes directed at
particular
religious, or national, or racial minorities: whether prejudice against
discrete and insular minorities may be a special condition, which tends
seriously to curtail the operation of those political processes
ordinarily
to be relied upon to protect minorities, and which may call for a
correspondingly
more searching judicial inquiry.
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Mildred and Richard Loving, who successfully
challenged
Virginia's miscegenation law. (UPI)
Questions
1. Which type of
classifications
are more likely to present a serious equal protection issue:
overinclusive
classifications or underinclusive classifications? Why?
2. Identify as
many
legitimate reasons as you can for the classification involved in Railway
Express.
3. In
identifying
a justification for a challenged classification, should the Court
consider
(1) actual purposes for the classification, (2) all justifications now
proffered by the state, or (3) all justifications proffered by the
state
plus those that the Court can dream up on its own?
4. What level
of scrutiny
do you believe would be appropriate in the Kotch case?
Could
you argue that the classification burdened a fundamental right to
pursue
own's chosen profession? Does the fact that one's ability to
become
a Louisiana riverboat captain turns on blood connections justify more
than
rational basis scrutiny?
5. Korematsu
is the only Supreme Court decision purporting to apply strict scrutiny
that results in a challenged classification disadvantaging a racial
minority
being upheld. How do you account for the outcome of this case?
6. Is Skinner
better analyzed as an equal protection case or a substantive due
process
case? What about Loving?
7. Can you
hypothesize
a situation today in which a classification disadvantaging a racial
minority
might be upheld?
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