Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
A guarantee of equal protection of the laws was contained in every draft leading up to the final version of section 1 of the Fourteenth Amendment.1 The desire to provide a firm constitutional basis for already-enacted civil rights legislation2 and to place repeal beyond the accomplishment of a simple majority in a future Congress was important to its sponsors.3 No doubt there were conflicting interpretations of the phrase
equal protection among sponsors and supporters and the legislative history does little to clarify whether any sort of consensus was accomplished and if so what it was.4 Although the Court early recognized that African Americans were the primary intended beneficiaries of the protections thus adopted,5 the spare language was majestically unconfined to so limited a class or to so limited a purpose. Though efforts to argue for an expansive interpretation met with little initial success,6 the equal protection standard ultimately came to be applicable to all classifications by legislative and other official bodies. Now, the Equal Protection Clause looms large in the fields of civil rights and fundamental liberties as a constitutional text affording the federal and state courts extensive powers of review with regard to differential treatment of persons and classes.
The Traditional Standard: Restrained Review
The traditional standard of review of equal protection challenges of classifications developed largely though not entirely in the context of economic regulation.7 It is still most often applied there, although it appears in many other contexts as well,8 including so-called
class-of-one challenges.9 A more active review has been developed for classifications based on a
suspect indicium or affecting a
The Fourteenth Amendment enjoins ‘the equal protection of the laws,’ and laws are not abstract propositions. Justice Frankfurter once wrote,
They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.10 Thus, the mere fact of classification will not void legislation,11 because in the exercise of its powers a legislature has considerable discretion in recognizing the differences between and among persons and situations.12
Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.13 Or, more succinctly,
statutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution.14
How then is the line between permissible and invidious classification to be determined? In Lindsley v. Natural Carbonic Gas Co.,15 the Court summarized one version of the rules still prevailing.
1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Especially because of the emphasis upon the necessity for total arbitrariness, utter irrationality, and the fact that the Court will strain to conceive of a set of facts that will justify the classification, the test is extremely lenient and, assuming the existence of a constitutionally permissible goal, no classification will ever be upset. But, contemporaneously with this test, the Court also pronounced another lenient standard which did leave to the courts a judgmental role. In F.S. Royster Guano Co. v. Virginia,16 the court put forward the following test:
[T]he classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.17 Use of the latter standard did in fact result in some invalidations.18
But then, coincident with the demise of substantive due process in the area of economic regulation,19 the Court reverted to the former standard, deferring to the legislative judgment on questions of economics and related matters; even when an impermissible purpose could have been attributed to the classifiers it was usually possible to conceive of a reason that would justify the classification.20 Strengthening the deference was the recognition of discretion in the legislature not to try to deal with an evil or a class of evils all within the scope of one enactment but to approach the problem piecemeal, to learn from experience, and to ameliorate the harmful results of two evils differently, resulting in permissible over- and under-inclusive classifications.21
In recent years, the Court has been remarkably inconsistent in setting forth the standard which it is using, and the results have reflected this. It has upheld economic classifications that suggested impermissible intention to discriminate, reciting at length the Lindsley standard, complete with the conceiving-of-a-basis and the one-step-at-a-time rationale,22 and it has applied this relaxed standard to social welfare regulations.23 In other cases, it has used the Royster Guano standard and has looked to the actual goal articulated by the legislature in determining whether the classification had a reasonable relationship to that goal,24 although it has usually ended up upholding the classification. Finally, purportedly applying the rational basis test, the Court has invalidated some classifications in the areas traditionally most subject to total deference.25
Attempts to develop a consistent principle have so far been unsuccessful. In Railroad Retirement Board v. Fritz,26 the Court acknowledged that
[t]he most arrogant legal scholar would not claim that all of these cases cited applied a uniform or consistent test under equal protection principles, but then went on to note the differences between Lindsley and Royster Guano and chose the former. But, shortly, in Schweiker v. Wilson,27 in an opinion written by a different Justice,28 the Court sustained another classification, using the Royster Guano standard to evaluate whether the classification bore a substantial relationship to the goal actually chosen and articulated by Congress. In between these decisions, the Court approved a state classification after satisfying itself that the legislature had pursued a permissible goal, but setting aside the decision of the state court that the classification would not promote that goal; the Court announced that it was irrelevant whether in fact the goal would be promoted, the question instead being whether the legislature
could rationally have decided that it would.29
In short, it is uncertain which formulation of the rational basis standard the Court will adhere to.30 In the main, the issues in recent years have not involved the validity of classifications, but rather the care with which the Court has reviewed the facts and the legislation with its legislative history to uphold the challenged classifications. The recent decisions voiding classifications have not clearly set out which standard they have been using.31 Clarity in this area, then, must await presentation to the Court of a classification that it would sustain under the Lindsley standard and invalidate under Royster Guano.