2.5 Equal protection
6 min read•august 20, 2024
Equal protection is a cornerstone of American law, ensuring fair treatment for all under the 14th Amendment. It prohibits discrimination based on protected characteristics and applies to both state and federal governments.
Courts use different levels of scrutiny to evaluate equal protection claims. applies to race and , to gender, and to most economic and social legislation.
Meaning of equal protection
- Equal protection is a fundamental constitutional principle enshrined in the 14th Amendment of the U.S. Constitution
- Requires the government to treat all individuals equally under the law and prohibits discrimination based on certain protected characteristics
- Applies to both state and federal governments and ensures that laws are applied uniformly to all persons in similar circumstances
Levels of scrutiny
- Courts apply different levels of scrutiny when evaluating equal protection claims, depending on the nature of the classification or right involved
- The level of scrutiny determines the burden of proof and the level of justification required for the government to defend a challenged law or policy
Strict scrutiny
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- Highest level of judicial review applied to classifications based on race, national origin, or that infringe upon fundamental rights
- Government must demonstrate that the law or policy is narrowly tailored to serve a compelling state interest
- Presumption of unconstitutionality; government bears the burden of proving the law or policy is necessary and the least restrictive means of achieving its goal
Intermediate scrutiny
- Applied to classifications based on gender or illegitimacy (i.e., discrimination against children born out of wedlock)
- Government must show that the law or policy is substantially related to an important governmental interest
- Requires a closer fit between the means and the ends than rational basis review, but less stringent than strict scrutiny
Rational basis review
- Lowest level of scrutiny applied to most economic and social legislation
- Government must only demonstrate that the law or policy is rationally related to a legitimate governmental interest
- Highly deferential to the government; challenger bears the burden of proving that the law or policy is not rationally related to any conceivable legitimate purpose
Suspect classifications
- Certain classifications are considered "suspect" and trigger heightened scrutiny due to a history of discrimination or prejudice against the group
Race and national origin
- Classifications based on race or national origin are subject to strict scrutiny
- Considered inherently suspect due to the long history of in the United States
- Examples: laws mandating racial segregation, internment of Japanese Americans during World War II
Alienage
- Classifications based on (i.e., citizenship status) are generally subject to strict scrutiny
- Exceptions apply for certain government functions (e.g., public employment, voting) where citizenship may be a relevant qualification
Other suspect classes
- The Supreme Court has not recognized any additional suspect classes beyond race, national origin, and alienage
- Some argue that other characteristics, such as sexual orientation or poverty, should be considered suspect and trigger heightened scrutiny
Fundamental rights
- Equal protection also applies to laws or policies that infringe upon fundamental rights, which are subject to strict scrutiny
Right to vote
- Voting is considered a fundamental right, and laws that restrict or burden the are subject to strict scrutiny
- Examples: poll taxes, literacy tests, arbitrary voter ID requirements
Access to justice
- Laws that restrict access to the courts or the legal system may violate equal protection if they disproportionately impact certain groups
- Examples: excessive court fees, denial of appointed counsel in criminal cases
Right to travel
- The right to interstate travel is considered a fundamental right, and laws that burden this right are subject to strict scrutiny
- Examples: residency requirements for public benefits, restrictions on freedom of movement
Other fundamental rights
- Other rights that have been recognized as fundamental and subject to strict scrutiny include the right to privacy, the right to marry, and the right to procreate
Discriminatory intent vs impact
- Equal protection challenges may focus on either or
- Discriminatory intent requires proof that the government acted with the purpose of discriminating against a protected group
- Discriminatory impact occurs when a facially neutral law or policy has a disproportionate adverse effect on a protected group
- Discriminatory impact alone is generally not sufficient to violate equal protection, unless the impact is so severe as to suggest intentional discrimination
Affirmative action
- refers to policies designed to promote diversity or address past discrimination by providing preferences to underrepresented groups
- Affirmative action programs based on race are subject to strict scrutiny and must be narrowly tailored to serve a compelling interest
Diversity as compelling interest
- The Supreme Court has recognized diversity in higher education as a compelling interest that can justify the use of race-conscious admissions policies
- To satisfy strict scrutiny, the program must be narrowly tailored and consider race as one factor among many in a holistic, individualized review process
Narrowly tailored programs
- Affirmative action programs must be narrowly tailored to achieve the compelling interest in diversity
- Factors considered include the flexibility of the program, the necessity of using race, the burden on non-beneficiaries, and the duration of the program
- Quotas and rigid numerical targets are generally unconstitutional, while more flexible, individualized approaches may be permissible
Gender discrimination
- Laws or policies that discriminate based on gender are subject to intermediate scrutiny under equal protection
Intermediate scrutiny standard
- To withstand intermediate scrutiny, the government must demonstrate that the gender classification is substantially related to an important governmental interest
- The justification must be genuine and not based on outdated stereotypes or generalizations about gender roles
- Examples: laws that provide different benefits or burdens based on gender, such as military draft registration or statutory rape laws
Discrimination based on age
- Age-based classifications are subject to rational basis review, as age is not considered a suspect class
- Laws that discriminate based on age will be upheld if they are rationally related to a legitimate governmental interest
- Examples: mandatory retirement ages, minimum age requirements for certain activities (e.g., driving, voting)
Discrimination against the poor
- Poverty alone is not a suspect classification, and laws that discriminate based on wealth are subject to rational basis review
- However, the Supreme Court has struck down some laws that discriminate against the poor in areas such as voting rights and access to the courts
- Examples: poll taxes, excessive court fees for indigent defendants
Same-sex marriage and equal protection
- In (2015), the Supreme Court held that laws banning same-sex marriage violate both the Due Process and Equal Protection Clauses of the 14th Amendment
- The Court applied a form of heightened scrutiny, finding that the right to marry is a fundamental right and that sexual orientation classifications warrant careful consideration
Equal protection in education
- Equal protection has played a significant role in addressing discrimination and inequality in the educational context
School desegregation
- In (1954), the Supreme Court held that racial segregation in public schools violates equal protection
- The Court rejected the "separate but equal" doctrine and ordered the desegregation of public schools nationwide
Funding disparities
- Equal protection challenges have also been brought against school funding systems that result in disparities between wealthy and poor districts
- While the Supreme Court has not recognized education as a fundamental right, some state courts have struck down funding schemes under state equal protection clauses
Congressional enforcement of equal protection
- Section 5 of the 14th Amendment grants Congress the power to enforce the provisions of the amendment, including equal protection
- Congress may enact legislation to prevent or remedy equal protection violations, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965
- However, the Supreme Court has limited Congress's enforcement power, requiring that legislation be congruent and proportional to the identified constitutional violation
Key Terms to Review (26)
Access to justice: Access to justice refers to the ability of individuals to seek and obtain a remedy through the legal system. It encompasses not only the physical ability to reach courts but also includes financial affordability, availability of legal representation, and understanding of legal rights. Ensuring access to justice is crucial for upholding the rule of law and maintaining equality before the law, as it allows individuals, particularly marginalized groups, to protect their rights and seek redress in legal matters.
Affirmative action: Affirmative action refers to policies and practices that aim to promote equal opportunities for historically marginalized groups in areas such as education and employment. These measures are intended to counteract systemic discrimination and ensure representation by providing advantages or preferences to individuals based on their race, gender, or other characteristics. It is a contentious topic, often tied to the principles of equal protection under the law.
Alienage: Alienage refers to the legal status of being a foreign national or a non-citizen within a country. This status can affect an individual's rights, privileges, and access to certain legal protections, particularly in relation to equal protection under the law. The concept of alienage is often central to discussions about immigration, civil rights, and the treatment of individuals based on their nationality or citizenship status.
Brown v. Board of Education: Brown v. Board of Education was a landmark Supreme Court case decided in 1954 that declared racial segregation in public schools unconstitutional. This case challenged the established doctrine of 'separate but equal' from Plessy v. Ferguson and emphasized the importance of equality in education, impacting constitutional law, the power of judicial review, and the principle of equal protection under the law.
Civil rights movement: The civil rights movement was a social and political campaign in the United States during the 1950s and 1960s, aimed at ending racial discrimination and securing equal rights for African Americans. This movement sought to dismantle systemic racism through various means, including nonviolent protests, legal challenges, and grassroots organizing, leading to significant changes in laws and societal attitudes regarding race.
Damages: Damages refer to the monetary compensation awarded to a party in a legal dispute to cover losses or injuries suffered as a result of another party's wrongful conduct. This concept plays a crucial role in ensuring that victims are made whole, whether in contract disputes, negligence cases, or claims related to equal protection violations. By quantifying the harm and providing a financial remedy, damages serve as both a deterrent against wrongful acts and a way to uphold justice.
Discriminatory impact: Discriminatory impact refers to the negative effects or consequences of policies, practices, or laws that may not be overtly discriminatory but disproportionately affect a particular group based on characteristics such as race, gender, or socio-economic status. This concept highlights the importance of examining outcomes and impacts rather than just intent, which can reveal underlying inequalities and injustices present in legal frameworks.
Discriminatory intent: Discriminatory intent refers to the purposeful motivation behind actions or policies that result in unequal treatment of individuals based on characteristics such as race, gender, or ethnicity. This concept is crucial in understanding how laws are applied to ensure equal protection under the law, as it helps to identify when discrimination occurs intentionally rather than as a byproduct of neutral policies.
Disparate impact: Disparate impact refers to policies or practices that, while seemingly neutral, disproportionately affect a particular group of people based on race, gender, or other protected characteristics. This concept is key to understanding how equal protection under the law can sometimes be undermined by indirect discrimination, leading to outcomes that disadvantage certain groups even if there is no intent to discriminate.
Equal Protection Clause: The Equal Protection Clause is a provision in the Fourteenth Amendment of the U.S. Constitution that prohibits states from denying any person within their jurisdiction equal protection under the law. This clause is essential for ensuring that individuals are treated fairly and without discrimination, connecting directly to issues of civil rights, social justice, and the balance of power in the federal system.
Fifth Amendment: The Fifth Amendment is part of the U.S. Constitution that provides several protections for individuals involved in legal proceedings, particularly in criminal cases. It ensures rights such as protection against self-incrimination, double jeopardy, and guarantees due process of law. This amendment plays a crucial role in balancing individual freedoms with the powers of the government, which connects deeply to concepts like due process and equal protection under the law.
Fourteenth Amendment: The Fourteenth Amendment to the United States Constitution, ratified in 1868, provides a broad range of protections for individuals, primarily addressing issues related to citizenship and equal protection under the law. It is crucial for guaranteeing that states cannot deprive any person of life, liberty, or property without due process, while also ensuring equal protection for all individuals against discrimination by the state.
Fundamental Rights: Fundamental rights are the basic human rights and freedoms that are guaranteed to all individuals, often enshrined in a constitution or legal framework. These rights serve as the foundation for justice and equality within a society, ensuring that individuals are protected from discrimination and unjust treatment by the state or other entities. They are essential in promoting equal protection under the law and safeguarding individual dignity.
Gender discrimination: Gender discrimination refers to the unfair treatment or unequal opportunities afforded to individuals based on their gender. This type of discrimination can occur in various settings, including employment, education, and access to services, and often leads to systemic inequalities that disadvantage one gender over another, primarily women. Recognizing and addressing gender discrimination is vital for ensuring equal protection under the law and promoting social justice.
Injunctive relief: Injunctive relief is a legal remedy in the form of a court order that requires a party to do or refrain from doing specific acts. This form of relief is crucial in preventing harm or preserving the status quo, particularly in cases where monetary damages would not provide adequate compensation. It often applies in disputes involving intentional torts and situations requiring equal protection under the law.
Intermediate scrutiny: Intermediate scrutiny is a standard of judicial review used by courts to evaluate laws or policies that discriminate based on gender or legitimacy. This level of scrutiny requires the government to show that the challenged law serves an important governmental objective and that the means chosen to achieve that objective are substantially related to it. This approach lies between strict scrutiny, which applies to fundamental rights, and rational basis review, which is applied to most other types of legislation.
Obergefell v. Hodges: Obergefell v. Hodges is a landmark Supreme Court case decided in 2015 that legalized same-sex marriage across the United States. The Court ruled that state bans on same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, affirming that marriage is a fundamental right that cannot be denied based on sexual orientation. This decision not only reshaped the legal landscape for marriage equality but also highlighted the ongoing struggle for civil rights and equality in American society.
Race and National Origin: Race and national origin refer to the characteristics and backgrounds of individuals based on their racial identity and the country or region they come from. These concepts are crucial in understanding how legal frameworks protect individuals from discrimination, ensuring that all people have equal access to rights and opportunities regardless of their race or the nation they identify with.
Racial discrimination: Racial discrimination refers to the unfair treatment of individuals based on their race or ethnicity, often manifesting in various social, economic, and political contexts. This type of discrimination is rooted in prejudicial beliefs and systemic inequalities, leading to disparities in opportunities and outcomes for affected groups. Racial discrimination violates principles of equality and justice, which are fundamental to a fair society.
Rational basis review: Rational basis review is a legal standard used by courts to evaluate laws and government actions that do not involve fundamental rights or suspect classifications. Under this standard, a law is presumed constitutional as long as it has a legitimate government interest and the means chosen are rationally related to that interest. This review is the most lenient form of judicial scrutiny, often applied in cases related to due process and equal protection.
Reverse Discrimination: Reverse discrimination refers to the practice of giving preferential treatment to members of historically disadvantaged groups, which can lead to discrimination against those from historically advantaged groups. This term often emerges in discussions surrounding affirmative action policies, where the intention is to level the playing field but may result in perceived unfairness to individuals who do not belong to those targeted groups. The debate around reverse discrimination centers on issues of equality, fairness, and the balance between correcting historical injustices and ensuring equal opportunity for all.
Right to travel: The right to travel refers to the fundamental freedom of individuals to move freely between states, enter and leave the country, and choose their own destinations without undue restrictions. This right is rooted in various constitutional principles and is often connected to the concept of equal protection under the law, as it ensures that all individuals have access to the same opportunities regardless of their personal circumstances.
Right to Vote: The right to vote is the legal entitlement of individuals to participate in elections and influence governmental decisions through their choice of representatives. This fundamental right is essential for a functioning democracy, ensuring that all citizens have a say in the laws and policies that govern them. The right to vote is closely tied to principles of equal protection, as it seeks to guarantee that every citizen, regardless of race, gender, or socioeconomic status, has an equal opportunity to participate in the electoral process.
Roe v. wade: Roe v. Wade is a landmark Supreme Court case from 1973 that established a woman's legal right to have an abortion under the right to privacy protected by the Fourteenth Amendment. This decision fundamentally transformed the legal landscape regarding reproductive rights, connecting to debates about personal autonomy, state interests, and social justice.
Strict Scrutiny: Strict scrutiny is the highest standard of judicial review used by courts to evaluate the constitutionality of governmental actions that affect fundamental rights or involve suspect classifications, such as race or national origin. Under this standard, the government must prove that the challenged action serves a compelling governmental interest and is narrowly tailored to achieve that interest, making it a critical tool in protecting individual rights and ensuring equality under the law.
Suspect classifications: Suspect classifications refer to specific categories of individuals that are considered by the law to require special scrutiny when it comes to government actions that treat them differently. These classifications typically include characteristics such as race, national origin, and religion, and are subjected to a higher level of judicial review to ensure that any discrimination against these groups is justified and necessary. This concept is essential in discussions around equal protection under the law, as it highlights the need for vigilance against unfair treatment based on immutable characteristics.