Individual rights - Equal protection

Learning Outcomes

This article examines the Equal Protection Clause of the Fourteenth Amendment and its application, primarily focusing on state action and the different standards of judicial review. After studying this material, you will be able to identify state action, determine the appropriate level of scrutiny for various classifications (suspect, quasi-suspect, non-suspect), analyze whether a governmental classification impacting fundamental rights or specific groups violates equal protection, and apply these concepts to MBE fact patterns.

MBE Syllabus

For the MBE, you are expected to understand the constitutional constraints preventing the government from establishing arbitrary or invidious classifications. This involves analyzing the Equal Protection Clause of the Fourteenth Amendment (applicable to states) and the equal protection component of the Fifth Amendment's Due Process Clause (applicable to the federal government). You should be prepared to:

  • Determine whether state action is present.
  • Identify the three standards of review: strict scrutiny, intermediate scrutiny, and rational basis.
  • Analyze classifications based on suspect criteria (race, national origin, alienage) under strict scrutiny.
  • Analyze classifications based on quasi-suspect criteria (gender, legitimacy) under intermediate scrutiny.
  • Analyze classifications based on non-suspect criteria (age, wealth, disability, sexual orientation) under rational basis review.
  • Assess classifications that burden fundamental rights (e.g., voting, interstate travel) under strict scrutiny.
  • Distinguish between discriminatory purpose and discriminatory impact.

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 requires all public school teachers to be United States citizens. Which standard of review will a court apply to evaluate this law under the Equal Protection Clause?
    1. Strict scrutiny
    2. Intermediate scrutiny
    3. Rational basis
    4. Heightened scrutiny
  2. Which of the following classifications is most likely to trigger strict scrutiny under the Equal Protection Clause?
    1. A classification based on gender.
    2. A classification based on age.
    3. A classification based on legitimacy.
    4. A classification based on national origin.
  3. To successfully challenge a facially neutral law on equal protection grounds based on its discriminatory impact, a plaintiff must primarily prove:
    1. The law substantially burdens a fundamental right.
    2. The law has a disproportionate impact on a protected class.
    3. The law serves no legitimate government purpose.
    4. The law was enacted or is being applied with a discriminatory purpose.
  4. A state university adopts an admissions policy that gives a preference to applicants whose parents are alumni. This policy disproportionately benefits white applicants. If challenged under the Equal Protection Clause, the policy will likely be reviewed under:
    1. Strict scrutiny, because it has a disparate impact based on race.
    2. Intermediate scrutiny, because education is an important interest.
    3. Rational basis, because wealth/legacy status is not a suspect classification.
    4. Strict scrutiny, because access to higher education is a fundamental right.

Introduction

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." While the text applies directly only to state and local governments, grossly unreasonable discrimination by the federal government is prohibited by the Due Process Clause of the Fifth Amendment, which is interpreted to contain an equal protection component. [Bolling v. Sharpe]

Equal protection analysis arises when a law treats different classes of persons differently. The core guarantee is that similarly situated persons will be treated similarly under the law. However, not all differential treatment is unconstitutional. The level of judicial scrutiny applied depends on the type of classification made by the law or the nature of the right affected.

STATE ACTION REQUIREMENT

The protections of the Fourteenth Amendment (and the Fifth Amendment's equal protection component) apply only to governmental action, often referred to as state action. This includes actions by federal, state, and local governments, as well as their officials and agencies acting under color of law. Purely private conduct generally does not trigger equal protection scrutiny, unless the private actor is performing an exclusive public function or there is significant state involvement with the private conduct.

Key Term: State Action Governmental conduct required to trigger application of the Equal Protection Clause (and most other constitutional rights), as distinguished from purely private conduct.

  • Exclusive Public Function: A private entity performing a function traditionally and exclusively done by the government (e.g., running a town, conducting elections) is engaged in state action. Operating a shopping mall is not an exclusive public function. [Marsh v. Alabama; Hudgens v. NLRB]
  • Significant State Involvement: If the government affirmatively facilitates, encourages, or authorizes private discrimination, or is significantly intertwined with the private entity, state action may be found. Merely granting a license or regulating a private entity is insufficient. [Burton v. Wilmington Parking Auth.; Moose Lodge v. Irvis]

LEVELS OF SCRUTINY

When a law treats different classes of people differently, the court applies one of three tests to determine if the classification violates equal protection:

  1. Strict Scrutiny: The law must be necessary to achieve a compelling government interest and must be narrowly tailored (least restrictive means). The government bears the burden of proof. This test applies to classifications based on suspect criteria (race, national origin, sometimes alienage) or classifications burdening fundamental rights. It is very difficult for a law to survive strict scrutiny.

Key Term: Strict Scrutiny The most rigorous standard of judicial review, requiring the government to prove a law is necessary to achieve a compelling state interest and is narrowly tailored.

  1. Intermediate Scrutiny: The law must be substantially related to an important government interest. The government likely bears the burden of proof. This test applies to quasi-suspect classifications (gender, legitimacy). The justification must be genuine, not based on stereotypes.

Key Term: Intermediate Scrutiny An intermediate standard of review requiring the government to show a law is substantially related to an important government interest.

  1. Rational Basis: The law must be rationally related to a legitimate government interest. The challenger bears the burden of proof. This is the default test for classifications not based on suspect or quasi-suspect criteria and not burdening fundamental rights (e.g., age, wealth, disability). Laws are presumed valid under this standard and are rarely struck down, unless purely arbitrary or motivated by animus.

Key Term: Rational Basis The lowest standard of judicial review, requiring the challenger to prove a law is not rationally related to any legitimate government interest.

DISCRIMINATORY CLASSIFICATIONS

The level of scrutiny applied often depends on the basis of the classification.

Suspect Classifications (Strict Scrutiny)

These classifications are inherently suspect and trigger strict scrutiny.

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

  1. Race and National Origin: Laws that explicitly classify based on race or national origin are subject to strict scrutiny and are almost always invalid. [Korematsu v. United States (historical exception); Loving v. Virginia]

    • Discriminatory Purpose Required: To trigger strict scrutiny for a facially neutral law that has a disparate impact, the challenger must prove the law has a discriminatory purpose. Showing only a disproportionate effect is insufficient. [Washington v. Davis; Arlington Heights v. Metropolitan Housing Dev. Corp.] Purpose can be shown by the law's text, legislative history, pattern of application, or extrinsic evidence.
    • Affirmative Action: Race-based affirmative action programs are also subject to strict scrutiny. They must be narrowly tailored to serve a compelling government interest, such as remedying specific past discrimination by the entity involved or, in higher education, achieving the educational benefits of diversity (quotas are not allowed). [Regents of Univ. of California v. Bakke; Grutter v. Bollinger; Fisher v. University of Texas]

  2. Alienage (Sometimes Strict Scrutiny): Classifications based on status as a lawful resident alien are generally suspect and trigger strict scrutiny when made by state or local governments. [Graham v. Richardson]

    • Exceptions: Rational basis review applies if the classification relates to self-governance or the democratic process (e.g., voting, holding elective office, being a police officer, public school teacher). [Ambach v. Norwick; Cabell v. Chavez-Salido]
    • Federal Government: Federal classifications based on alienage are generally reviewed under rational basis due to Congress's plenary power over immigration. [Mathews v. Diaz]
    • Undocumented Aliens: Classifications based on undocumented status are reviewed under rational basis, except for denying free public elementary/secondary education to children, which requires showing the law furthers a substantial state interest. [Plyler v. Doe]

Quasi-Suspect Classifications (Intermediate Scrutiny)

These classifications trigger intermediate scrutiny.

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

  1. Gender: Classifications based on gender must be substantially related to an important government interest. The justification must be "exceedingly persuasive" and cannot rely on overbroad stereotypes. [Craig v. Boren; United States v. Virginia]

    • Intentional Discrimination: Laws intentionally discriminating based on gender (against men or women) are often struck down.
    • Benign Discrimination/Affirmative Action: Classifications designed to remedy past discrimination against women may be upheld if narrowly tailored. [Califano v. Webster]

  2. Legitimacy (Non-Marital Children): Classifications distinguishing between marital and non-marital children are subject to intermediate scrutiny. Laws intended to punish non-marital children are invalid. Laws relating to inheritance or government benefits may be upheld if substantially related to an important interest (e.g., orderly disposition of property), but cannot create insurmountable barriers. [Trimble v. Gordon; Lalli v. Lalli; Clark v. Jeter]

Non-Suspect Classifications (Rational Basis)

All other classifications fall into this category and are reviewed under the deferential rational basis standard. Examples include:

  • Age: [Massachusetts Bd. of Retirement v. Murgia]
  • Disability: [City of Cleburne v. Cleburne Living Center]
  • Wealth/Poverty: [San Antonio Indep. Sch. Dist. v. Rodriguez] (But note: denial of fundamental rights based solely on inability to pay fees triggers heightened scrutiny).
  • Sexual Orientation: While the Supreme Court has struck down laws discriminating based on sexual orientation using rational basis review "with bite" (finding animus is not a legitimate purpose), it has not explicitly declared sexual orientation a suspect or quasi-suspect classification. [Romer v. Evans; United States v. Windsor; Obergefell v. Hodges]

Worked Example 1.1

A state enacts a law requiring all state judges to retire at age 70. A 69-year-old judge challenges the law, arguing it violates the Equal Protection Clause. What standard of review will the court apply, and is the law likely constitutional?

Answer: The court will apply the rational basis standard. Age is not a suspect or quasi-suspect classification. The state likely has a legitimate interest in ensuring judicial competence and promoting opportunities for younger judges. Mandatory retirement at 70 is arguably rationally related to these interests. The law is likely constitutional. [See Gregory v. Ashcroft]

FUNDAMENTAL RIGHTS

If a law creates classifications that significantly burden a fundamental right, strict scrutiny applies, regardless of the type of classification used. Key fundamental rights triggering strict scrutiny under Equal Protection include:

  • Right to Vote: Laws denying or diluting the right to vote based on classifications other than age (18), residency (reasonable duration), and citizenship are subject to strict scrutiny (e.g., property ownership requirements, poll taxes). The one-person, one-vote principle requires voting districts to be substantially equal in population.
  • Right to Travel (Interstate Migration): Laws creating classifications that penalize the right of individuals to migrate from one state to another (e.g., durational residency requirements for essential government benefits) are subject to strict scrutiny. [Shapiro v. Thompson; Saenz v. Roe]
  • Right of Privacy: (Marriage, Procreation, Contraception, Family Relations, Child Rearing) - Although often analyzed under Substantive Due Process, classifications burdening these rights trigger strict scrutiny under Equal Protection as well. [Loving v. Virginia; Skinner v. Oklahoma]
  • Right of Access to Courts: Denial of court access based on wealth (e.g., inability to pay filing fees for divorce or appeal from termination of parental rights) can trigger strict scrutiny. [Griffin v. Illinois; M.L.B. v. S.L.J.]

Worked Example 1.2

A state passes a law requiring residents to live in the state for one year before being eligible to receive state-funded non-emergency medical care for indigents. Long-term residents receive such care immediately upon becoming indigent. A new resident, who moved to the state three months ago for permanent employment, needs qualifying non-emergency care but cannot afford it. Is the one-year waiting period constitutional?

Answer: Likely unconstitutional. The law creates a classification based on duration of residency that penalizes the fundamental right to travel (interstate migration). The state must show the law is necessary to achieve a compelling interest. While conserving state funds is a legitimate interest, denying essential medical care based on duration of residency is unlikely to survive strict scrutiny. The state would need to show no less restrictive means exist. [See Memorial Hospital v. Maricopa County]

Summary

The Equal Protection Clause prevents unjustified governmental discrimination. Analysis requires identifying (1) state action, (2) the basis of the classification, and (3) the right affected. Classifications based on suspect criteria (race, national origin) or burdening fundamental rights trigger strict scrutiny. Classifications based on quasi-suspect criteria (gender, legitimacy) trigger intermediate scrutiny. All other classifications trigger rational basis review. The government's discriminatory purpose, not just disparate impact, must generally be shown to trigger heightened scrutiny for facially neutral laws.

Key Point Checklist

This article has covered the following key knowledge points:

  • Equal Protection applies to states (14th Am.) and the federal government (5th Am. Due Process).
  • State action is required.
  • Three levels of scrutiny exist: strict scrutiny, intermediate scrutiny, and rational basis.
  • Strict scrutiny applies to suspect classifications (race, national origin, sometimes alienage) and laws burdening fundamental rights (voting, travel, privacy). Law must be necessary for a compelling interest.
  • Intermediate scrutiny applies to quasi-suspect classifications (gender, legitimacy). Law must be substantially related to an important interest.
  • Rational basis applies to all other classifications (age, wealth, disability). Law must be rationally related to a legitimate interest.
  • Discriminatory purpose, not just impact, is usually required to trigger heightened scrutiny for facially neutral laws.

Key Terms and Concepts

  • State Action
  • Strict Scrutiny
  • Intermediate Scrutiny
  • Rational Basis
  • Suspect Classification
  • Quasi-Suspect Classification
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