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 legislation 2 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.
The New Standards: Active Review
When government legislates or acts either on the basis of a
suspect classification or with regard to a
fundamental interest, the traditional standard of equal protection review is abandoned, and the Court exercises a
strict scrutiny. Under this standard government must demonstrate a high degree of need, and usually little or no presumption favoring the classification is to be expected. After much initial controversy within the Court, it has now created a third category, finding several classifications to be worthy of a degree of
intermediate scrutiny requiring a showing of important governmental purposes and a close fit between the classification and the purposes.
suspect categories is classification by race. First in the line of cases dealing with this issue is Korematsu v. United States, 32 concerning the wartime evacuation of Japanese-Americans from the West Coast, in which the Court said that because only a single ethnic-racial group was involved the measure was
immediately suspect and subject to
rigid scrutiny. The school segregation cases 33 purported to enunciate no per se rule, however, although subsequent summary treatment of a host of segregation measures may have implicitly done so, until in striking down state laws prohibiting interracial marriage or cohabitation the Court declared that racial classifications
bear a far heavier burden of justification than other classifications and were invalid because no
overriding statutory purpose 34 was shown and they were not necessary to some
legitimate overriding purpose. 35
A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. 36 Remedial racial classifications, that is, the development of
affirmative action or similar programs that classify on the basis of race for the purpose of ameliorating conditions resulting from past discrimination, are subject to more than traditional review scrutiny, but whether the highest or some intermediate standard is the applicable test is uncertain. 37 A measure that does not draw a distinction explicitly on race but that does draw a line between those who seek to use the law to do away with or modify racial discrimination and those who oppose such efforts does in fact create an explicit racial classification and is constitutionally suspect. 38
Toward the end of the Warren Court, there emerged a trend to treat classifications on the basis of nationality or alienage as suspect, 39 to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review, 40 and to decide cases concerning statutory and administrative treatments of children born out of wedlock inconsistently. 41 Language in a number of opinions appeared to suggest that poverty was a suspect condition, so that treating the poor adversely might call for heightened equal protection review. 42
However, in a major evaluation of equal protection analysis early in this period, the Court reaffirmed a two-tier approach, determining that where the interests involved that did not occasion strict scrutiny, the Court would decide the case on minimum rationality standards. Justice Powell, writing for the Court in San Antonio School Dist. v. Rodriguez, 43 decisively rejected the contention that a de facto wealth classification, with an adverse impact on the poor, was either a suspect classification or merited some scrutiny other than the traditional basis, 44 a holding that has several times been strongly reaffirmed by the Court. 45 But the Court’s rejection of some form of intermediate scrutiny did not long survive.
Without extended consideration of the issue of standards, the Court more recently adopted an intermediate level of scrutiny, perhaps one encompassing several degrees of intermediate scrutiny. Thus, gender classifications must, in order to withstand constitutional challenge,
serve important governmental objectives and must be substantially related to achievement of those objectives. 46 And classifications that disadvantage persons born out of wedlock are subject to a similar though less exacting scrutiny of purpose and fit. 47 This period also saw a withdrawal of the Court from the principle that alienage is always a suspect classification, so that some discriminations against aliens based on the nature of the political order, rather than economics or social interests, need pass only the lenient review standard. 48
The Court has so far resisted further expansion of classifications that must be justified by a standard more stringent than rational basis. For example, the Court has held that age classifications are neither suspect nor entitled to intermediate scrutiny. 49 Although the Court resists the creation of new suspect or
quasi-suspect classifications, it may still, on occasion, apply the Royster Guano rather than the Lindsley standard of rationality. 50
The other phase of active review of classifications holds that when certain fundamental liberties and interests are involved, government classifications which adversely affect them must be justified by a showing of a compelling interest necessitating the classification and by a showing that the distinctions are required to further the governmental purpose. The effect of applying the test, as in the other branch of active review, is to deny to legislative judgments the deference usually accorded them and to dispense with the general presumption of constitutionality usually given state classifications. 51
It is thought 52 that the
fundamental right theory had its origins in Skinner v. Oklahoma ex rel. Williamson, 53 in which the Court subjected to
strict scrutiny a state statute providing for compulsory sterilization of habitual criminals, such scrutiny being thought necessary because the law affected
one of the basic civil rights. In the apportionment decisions, Chief Justice Warren observed that,
since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. 54 A stiffening of the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility 55 and the phrase
compelling state interest was used several times in Justice Brennan’s opinion in Shapiro v. Thompson. 56 Thereafter, the phrase was used in several voting cases in which restrictions were voided, and the doctrine was asserted in other cases. 57
Although no opinion of the Court attempted to delineate the process by which certain
fundamental rights were differentiated from others, 58 it was evident from the cases that the right to vote, 59 the right of interstate travel, 60 the right to be free of wealth distinctions in the criminal process, 61 and the right of procreation 62 were at least some of those interests that triggered active review when de jure or de facto official distinctions were made with respect to them. In Rodriguez, 63 the Court also sought to rationalize and restrict this branch of active review, as that case involved both a claim that de facto wealth classifications should be suspect and a claim that education was a fundamental interest, so that providing less of it to people because they were poor triggered a compelling state interest standard. The Court readily agreed that education was an important value in our society.
But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. . . . [T]he answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. 64 A right to education is not expressly protected by the Constitution, continued the Court, and it was unwilling to find an implied right because of its undoubted importance.
But just as Rodriguez did not ultimately prevent the Court’s adoption of a
sliding-tier standard of review, Justice Powell's admonition that only interests expressly or impliedly protected by the Constitution should be considered
fundamental did not prevent the expansion of the list of such interests. The difficulty was that Court decisions on the right to vote, the right to travel, the right to procreate, as well as other rights, premise the constitutional violation to be of the Equal Protection Clause, which does not itself guarantee the right but prevents the differential governmental treatment of those attempting to exercise the right. 65 Thus, state limitation on the entry into marriage was soon denominated an incursion on a fundamental right that required a compelling justification. 66 Although denials of public funding of abortions were held to implicate no fundamental interest – abortion's being a fundamental interest – and no suspect classification – because only poor women needed public funding 67 – other denials of public assistance because of alienage, sex, or whether a person was born out of wedlock have been deemed to be governed by the same standard of review as affirmative harms imposed on those grounds. 68 And, in Plyler v. Doe, 69 the complete denial of education to the children of unlawfully present aliens was found subject to intermediate scrutiny and invalidated.
An open question after Obergefell v. Hodges, the 2015 case finding the right to same-sex marriage is protected by the Constitution, is the extent to which the Court is reconceptualizing equal protection analysis. 70 In Obergefell, the Court concluded that state laws that distinguished between marriages between same- and opposite-sex married couples violated the Equal Protection Clause. 71 However, in lieu of more traditional equal protection analysis, the Obergefell Court did not identify whether the base classification made by the challenged state marriage laws was
suspect. Nor did the Obergefell Court engage in a balancing test to determine whether the purpose of the state classification was tailored to or fit the contours of the classification. Instead, the Court merely declared that state laws prohibiting same-sex marriage
abridge[d] central precepts of equality. 72 It remains to be seen whether Obergefell signals a new direction for the Court’s equal protection jurisprudence or is merely an anomaly that indicates the fluctuating nature of active review, as the doctrine has been subject to shifting majorities and varying degrees of concern about judicial activism and judicial restraint. Nonetheless, as will be more fully reviewed below, the sliding scale of review underlies many of the Court’s most recent equal protection cases, even if the jurisprudence and its doctrinal basis have not been fully elucidated or consistently endorsed by the Court.