Text Assist for Introduction to Equal Protection

The Declaration of Independence stated that "all men are created equal." Yet, the framers did not bother to mention "equality" in the Constitution. Not until 1868, the year the Fourteenth Amendment was ratified, did the concept of equality have a Constitutional base. And not until the modern era did the Court give it enduring Constitutional significance.

The doctrine of Equal Protection has become the single most important concept in the Constitution for the protection of individual rights. As you have seen, Substantive Due Process was, for the most part, disclaimed after 1937, and today’s judiciary is reluctant to use Due Process to strike down a legislative action. Likewise, the Privileges and Immunities Clause of the Fourteenth Amendment is not now, and never has been, a powerful tool for judicial review of state actions.

The Equal Protection Clause of the Fourteenth Amendment, by its own terms, applies only to state and local governments. ("No State shall . . . deny to any person . . . the equal protection of the laws.") There is no Equal Protection Clause that governs the federal government, and the Court has not attempted to make the Equal Protection Clause applicable to federal acts. However, a "discriminatory" act by the federal government would be prohibited by the Due process Clause of the Fifth Amendment. In Bolling v. Sharpe, 347 U.S. 497 (1954) the Supreme Court held that "discrimination may be so unjustifiable as to be violative of due process." Since 1954, therefore, the constitutional concept of equal protection of the laws applies to all governments in the United States: federal, state and local.

Equal Protection and Due Process share identical standards for validity.

For more information on Equal Protection, see the following flow charts: Determining the Standard of Review in Equal Protection Cases, Suspect Classes, Requirement of Purpose, Desegregation, Affirmative Action, and Fundamental Rights Jurisprudence.

Is there discrimination?
The Equal Protection Clause guarantees that similar individuals will receive similar government treatment. It also prevents people of different circumstances from being treated as if they were the same. In reviewing any classification, you must determine whether or not the people classified by the law are, in fact, "similar" or "dissimilar." There is no requirement that the government follow natural classifications and it may subdivide persons as it deems appropriate for the advancement of legitimate governmental purposes.

Has the state created a classification which disadvantages one group of persons relative to others?

Does the law separate groups based on any of the following classifications?

1. Economic/Social - Legislation that classifies according to economic or social groups must further a legitimate state interest and the classification must be rationally based. The only practical way that the legislation will be struck down is if the governmental purpose is stated in the legislation because the means must be rationally related to that purpose.
2. Race - Legislation that classifies according to race must further a compelling state interest and must be the least restrictive means. However, rarely will a compelling state interest be found valid. For example, in almost all cases, the underlying interest is white supremacy.
3. Gender - To establish a prima facie case of gender discrimination, the challenger must establish: a) intent; and b) impact . If a prima facie case is established, and defendant fails to rebut it successfully, the government must prove that there is a substantial relationship between the means (discrimination) and an important governmental purpose. In other words, if a gender-neutral statute will effect the purpose just as well, the law fails intermediate scrutiny.
4. Illegitimacy - Statutes that classify on the basis of illegitimacy must be substantially related to an important purpose.
5. Alienage - State: A classification based on alienage will be given strict scrutiny. Intent and impact requirements are the same as for race and gender. Federal: A classification based on alienage will be given rational basis since the Constitution given Congress plenary power in the alienage area.
6. Age - Since there has not been a history of unequal treatment and the aged do not have a stereotype problem, classification based on age is given only rational basis.
7. Mentally Retarded - There is a history of unequal treatment of mentally retarded persons and there is a stereotype problem. However, statutes that classify on the basis of ental retardation are given only rational basis to prevent litigation floodgates.

Disparate treatment & impact are required to trigger the Equal Protection clause
Sometimes a law may be neutral on its face, yet have a disparate impact on a group of people. For example: In Yick Wo v. Hopkins, 118 U.S.356 (1886), a San Francisco law required laundries be in stone or brick buildings. The board of supervisors waived this requirement for all laundries except those owned by Chinese individuals. The Court held this disparate enforcement unconstitutional. Justice Stanley Matthews commented on this enforcement disparity: "Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."

Is the discrimination reasonable?

Where the Supreme Court Found the Discrimination Unreasonable:
1) Loving v. Virginia - Even if the legislation generally burdens all races, if it classifies according to race, the purpose of racial integrity cannot be upheld. 388 U.S. 1 (1967) (regarding interracial marriages).
2) Palmore v. Sidoti - No purpose can be perceived that will justify race based classifications. There is very strict scrutiny. 466 U.S. 429 (1984) (child custody to interracial couple).
3) Plessy v. Ferguson Dissent - Racial classifications are inherently suspect and no matter how neutral it may seem, the legislation was designed to maintain supremacy, therefore the purpose is not valid. 163 U.S. 537 (1896) (upheld "separate but equal" doctrine in education).
4) Brown v. Board of Education - Separate is not equal in the area of education because it creates a stigma for black children and therefore they receive inferior education. 347 U.S. 483 (1954) (court struck down "separate but equal doctrine" in education without specifically overruling Plessy).
5) Bolling v. Sharpe, 347 U.S. 497 (1954) - in this companion case to Brown v. Board of Education, the Supreme Court held that the Due Process Clause of the Fifth Amendment has an equal protection component. The Court wrote, "discrimination may be so unjustifiable as to be violative of due process." Since 1954, therefore, the constitutional concept of equal protection of the laws applies to all governments in the United States: federal, state and local.

Does the classification adequately advance state objectives?

If the government’s "classification" (aka discrimination) relates to a proper governmental purpose, then the classification will be upheld.

A purpose to discriminate on racial grounds in unconstitutional
The Court concluded in Yick Wo v. Hopkins, 118 U.S.356 (1886), that the government’s "purpose" was "hostility to the race and nationality to which the [Chinese laundry operators] belong." In Yick Wo, a San Francisco law required that laundries be in stone or brick buildings. The board of supervisors waived this requirement for all laundries except those owned by Chinese individuals. The Court held this disparate enforcement unconstitutional.

Not all classifications are prohibited; only those which are unreasonable:
The Equal Protection Clause guarantees that similar individuals will receive similar government treatment. This does not mean that the government may not discriminate. If the government’s "classification" (aka discrimination) relates to a proper governmental purpose, then the classification will be upheld. Equal protection acts as a safeguard that this classification, or line drawing, is properly and fairly done.

Ends analysis:
What is the law supposed to do? Why is it needed?

Some Supreme Court thoughts on the issue of "ends":
1) "Whether legislation is wise or unwise as a matter of policy is a question with which we are not concerned." Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934). 2) "[A]rguments [about the social utility of legislation] are properly addressed to the legislature, not to us. We refuse to sit as a ‘super-legislature.’" Ferguson v. Skrupa, 372 U.S. 726 (1963).

What are the state's objectives (ENDS)?
What is the law supposed to do? Why is it needed?

Some Supreme Court thoughts on the issue of "ends":
1) "Whether legislation is wise or unwise as a matter of policy is a question with which we are not concerned." Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934). 2) "[A]rguments [about the social utility of legislation] are properly addressed to the legislature, not to us. We refuse to sit as a ‘super-legislature.’" Ferguson v. Skrupa, 372 U.S. 726 (1963).

Reasonableness depends upon the classification created (MEANS) and its relation to the ENDS sought by the law:
How do the requirements of the law solve the problems intended to be fixed by the law.

Closeness of fit:
The goal of any law is to end up with a "perfect fit" of the means and the ends. See the Tussman-tenBroek Analysis for examples of how the ends fits into the means.

End of Text Assist