Individual rights - Classifications subject to heightened scrutiny

Learning Outcomes

This article details the application of heightened scrutiny (strict and intermediate scrutiny) under the Equal Protection Clause. It explains the standards of review for suspect and quasi-suspect classifications and how discriminatory intent must be shown. After reading this article, you will understand how courts analyze laws that classify individuals based on race, national origin, alienage, gender, or legitimacy, equipping you to analyze these issues in MBE fact patterns.

MBE Syllabus

For the MBE, you are required to understand how the Equal Protection Clause applies different levels of scrutiny to governmental classifications. This requires familiarity with the tests applied when laws discriminate based on certain sensitive characteristics. You should be prepared to:

  • Identify classifications subject to heightened scrutiny (strict or intermediate).
  • Distinguish heightened scrutiny from rational basis review.
  • Understand the requirements for strict scrutiny (necessary to achieve a compelling government interest) and when it applies (suspect classifications like race, national origin, and sometimes alienage; fundamental rights).
  • Understand the requirements for intermediate scrutiny (substantially related to an important government interest) and when it applies (quasi-suspect classifications like gender and legitimacy).
  • Analyze how discriminatory intent (not just impact) must be proven for strict or intermediate scrutiny to apply to facially neutral laws.
  • Recognize exceptions where scrutiny levels differ (e.g., federal vs. state alienage classifications).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. A state law prohibits individuals who were born outside the United States from serving as police officers. A lawful permanent resident, born in another country, challenges the law. Which standard of review will the court most likely apply?
    1. Rational basis
    2. Intermediate scrutiny
    3. Strict scrutiny
    4. Undue burden
  2. A city enacts an ordinance requiring that all applicants for city firefighter positions be able to lift 150 pounds. Statistical evidence shows that significantly fewer female applicants than male applicants pass this test. A female applicant who failed the test challenges the ordinance on equal protection grounds. Assuming the city can show the requirement serves a legitimate objective, what else must the plaintiff demonstrate to trigger heightened scrutiny?
    1. That the requirement is not necessary to achieve the objective.
    2. That the requirement has a disparate impact on women.
    3. That the city adopted the requirement with a discriminatory purpose against women.
    4. That the requirement burdens a fundamental right.
  3. Which of the following classifications is most likely to be reviewed under intermediate scrutiny?
    1. A state law distinguishing between residents and non-residents for university tuition.
    2. A federal law giving preference in hiring to veterans.
    3. A state law providing different inheritance rights for marital versus nonmarital children.
    4. A city ordinance regulating the location of bookstores.

Introduction

The Equal Protection Clause of the Fourteenth Amendment, applicable to the states, and the equal protection component of the Fifth Amendment's Due Process Clause, applicable to the federal government, prohibit governmental bodies from denying persons equal protection of the laws. This means that government classifications distinguishing between different groups of people must be justified. While most classifications are reviewed under the lenient rational basis test, certain classifications trigger more rigorous forms of judicial review known as heightened scrutiny.

Heightened scrutiny encompasses two distinct standards: strict scrutiny and intermediate scrutiny. These standards impose a significantly greater burden on the government to justify the classification. This article focuses on the classifications subject to these heightened levels of review.

Strict Scrutiny

Strict scrutiny is the most rigorous form of judicial review. Under this standard, the government must prove that the challenged law is necessary to achieve a compelling government interest. The law must be narrowly tailored, meaning it is the least restrictive means available to achieve that interest. Classifications reviewed under strict scrutiny are almost always struck down.

Key Term: Strict Scrutiny The most demanding standard of judicial review, requiring the government to prove a law is necessary to achieve a compelling government interest and is narrowly tailored (least restrictive means).

Strict scrutiny applies primarily in two contexts under equal protection analysis: (1) when a law employs a suspect classification, or (2) when a law burdens a fundamental right (fundamental rights analysis is complex and overlaps with substantive due process; this article focuses mainly on suspect classifications).

Suspect Classifications

Certain classifications are deemed "suspect" because they are based on traits that have historically been subject to prejudice and discrimination, are often unrelated to an individual's ability to contribute to society, and are typically immutable characteristics.

Key Term: Suspect Classification A classification based on race, national origin, or, for state/local laws, alienage, which triggers strict scrutiny under equal protection analysis.

The primary suspect classifications are:

  1. Race and National Origin: Laws that classify individuals based on their race or national origin are subject to strict scrutiny. This standard applies whether the law disadvantages or benefits a racial or ethnic minority (e.g., affirmative action programs).

    • Proving Discrimination: Discriminatory intent, not just disparate impact, must be shown. Intent can be demonstrated by:
      • Facial Discrimination: The law explicitly draws a distinction based on race/national origin.
      • Discriminatory Application: A facially neutral law is applied in a discriminatory way.
      • Discriminatory Motive: A facially neutral law was adopted with the purpose of discriminating.
    • Affirmative Action: Racial classifications designed to benefit minorities (affirmative action) are also subject to strict scrutiny. They are generally upheld only if narrowly tailored to remedy specific, identified past discrimination. Promoting general diversity in higher education can be a compelling interest, but the program must be narrowly tailored (e.g., race as one factor among many, no quotas).

  2. Alienage (State and Local Laws): Classifications based on U.S. citizenship status made by state or local governments are generally subject to strict scrutiny. States typically cannot require U.S. citizenship for access to private employment, government benefits, or property ownership.

    • Exception - Participation in Government Functions: States may require U.S. citizenship for activities and positions essential to democratic self-governance (e.g., voting, holding elective office, serving as police officers, public school teachers). These classifications are subject only to rational basis review.
    • Federal Government Exception: Federal classifications based on alienage are generally not subject to strict scrutiny due to Congress's plenary power over immigration and naturalization. They are typically reviewed under the rational basis standard.
    • Undocumented Aliens: Undocumented aliens are not a suspect class. However, states cannot deny undocumented children access to public primary and secondary education unless it furthers a substantial state interest (Plyler v. Doe applied a standard stricter than rational basis but less than strict scrutiny).

Worked Example 1.1

A state enacts a law requiring all applicants for state civil service jobs to be United States citizens. A lawful permanent resident alien, otherwise qualified, is denied a job as a state university librarian solely based on this law and challenges it under the Equal Protection Clause. Will the law likely be upheld?

Answer: No. State laws classifying based on alienage are generally subject to strict scrutiny. While there is an exception allowing states to require citizenship for positions involving participation in governmental functions, a librarian position does not typically fall within this narrow exception. The state would need to show the citizenship requirement is necessary to achieve a compelling interest, a standard it is unlikely to meet for this type of position.

Intermediate Scrutiny

Intermediate scrutiny represents a middle ground between strict scrutiny and rational basis review. Under this standard, the government must prove that the classification is substantially related to an important government interest. This standard places a heavier burden on the government than rational basis but is less demanding than strict scrutiny.

Key Term: Intermediate Scrutiny A standard of judicial review requiring the government to prove a law is substantially related to an important government interest. Used for quasi-suspect classifications.

Intermediate scrutiny applies to quasi-suspect classifications.

Key Term: Quasi-Suspect Classification A classification based on gender or legitimacy (nonmarital children), which triggers intermediate scrutiny under equal protection analysis.

The primary quasi-suspect classifications are:

  1. Gender: Classifications based on gender (sex) are subject to intermediate scrutiny. The government must show an "exceedingly persuasive justification" for the classification, demonstrating it is substantially related to an important government objective. Laws based on archaic or overbroad stereotypes about the relative capabilities of men and women are generally invalid.

    • Intentional Discrimination: Discriminatory purpose, not just disparate impact, must be shown.
    • Remedial Measures: Laws designed to remedy past discrimination against women may be upheld if narrowly tailored (e.g., Social Security benefit calculations designed to compensate for past wage discrimination).
    • "Real Differences": Laws based on innate biological differences between sexes may sometimes be upheld (e.g., male-only draft registration, statutory rape laws punishing only men historically).

  2. Legitimacy (Nonmarital Children): Laws distinguishing between marital and nonmarital children are subject to intermediate scrutiny. Such classifications must be substantially related to an important government interest. Laws intended to punish nonmarital children are generally invalid. Laws related to the orderly disposition of property at death (e.g., requiring paternity establishment during the father's lifetime for inheritance) may be upheld if substantially related to that important interest.

Worked Example 1.2

A state law automatically grants widows, but not widowers, a property tax exemption upon the death of a spouse. A widower challenges the law as a violation of equal protection. Will the law likely be upheld?

Answer: No. The law classifies based on gender and is therefore subject to intermediate scrutiny. The state must show the classification is substantially related to an important government interest. Assuming the state's interest is assisting surviving spouses financially, granting the benefit only to women based on stereotypes about economic dependence is likely not substantially related to that interest. The state could achieve its objective through gender-neutral means (e.g., granting the exemption based on financial need).

Key Point Checklist

This article has covered the following key knowledge points:

  • Heightened scrutiny (strict and intermediate) applies to certain governmental classifications under the Equal Protection Clause (14th Amendment for states, 5th Amendment Due Process for federal government).
  • Discriminatory intent (not just impact) must be shown for facially neutral laws to trigger heightened scrutiny.
  • Strict scrutiny requires the law to be necessary for a compelling government interest.
  • Strict scrutiny applies to suspect classifications (race, national origin, state/local alienage) and laws burdening fundamental rights.
  • Alienage classifications by the federal government or by states concerning governmental functions receive only rational basis review.
  • Intermediate scrutiny requires the law to be substantially related to an important government interest.
  • Intermediate scrutiny applies to quasi-suspect classifications (gender, legitimacy/nonmarital children).
  • Laws based on gender stereotypes are generally invalid under intermediate scrutiny.

Key Terms and Concepts

  • Strict Scrutiny
  • Suspect Classification
  • Intermediate Scrutiny
  • Quasi-Suspect Classification
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