Equal Protection Clause
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws." It mandates that individuals in similar situations be treated equally by the law.[1][2][3]
A primary motivation for this clause was to validate the equality provisions contained in the Civil Rights Act of 1866, which guaranteed that all citizens would have the guaranteed right to equal protection by law. As a whole, the Fourteenth Amendment marked a large shift in American constitutionalism, by applying substantially more constitutional restrictions against the states than had applied before the Civil War.
The meaning of the Equal Protection Clause has been the subject of much debate, and inspired the well-known phrase "Equal Justice Under Law". This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision that helped to dismantle racial segregation. The clause has also been the basis for Obergefell v. Hodges which legalized same-sex marriages, along with many other decisions rejecting discrimination against, and bigotry towards, people belonging to various groups.
While the Equal Protection Clause itself applies only to state and local governments, the Supreme Court held in Bolling v. Sharpe (1954) that the Due Process Clause of the Fifth Amendment nonetheless requires equal protection under the laws of the federal government via reverse incorporation.
Text
The Equal Protection Clause is located at the end of Section 1 of the Fourteenth Amendment:
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. [emphasis added]
Background
Though equality under the law is an American legal tradition arguably dating to the Declaration of Independence,[4] formal equality for many groups remained elusive. Before passage of the Reconstruction Amendments, which included the Equal Protection Clause, American law did not extend constitutional rights to black Americans.[5] Black people were considered inferior to white Americans, and subject to chattel slavery in the slave states until the Emancipation Proclamation and the ratification of the Thirteenth Amendment.
Even black Americans that were not enslaved lacked many crucial legal protections.[5] In the 1857 Dred Scott v. Sandford decision, the Supreme Court rejected abolitionism and determined black men, whether free or in bondage, had no legal rights under the U.S. Constitution at the time.[6] Currently, a plurality of historians believe that this judicial decision set the United States on the path to the Civil War, which led to the ratifications of the Reconstruction Amendments.[7]
Before and during the Civil War, the Southern states prohibited speech of pro-Union citizens, anti-slavery advocates, and northerners in general, since the Bill of Rights did not apply to the states during such times. During the Civil War, many of the Southern states stripped the state citizenship of many whites and banished them from their state, effectively seizing their property. Shortly after the Union victory in the
Because of the inequality imposed by Black Codes, a Republican-controlled Congress enacted the
President Andrew Johnson vetoed the Civil Rights Act of 1866 amid concerns (among other things) that Congress did not have the constitutional authority to enact such a bill. Such doubts were one factor that led Congress to begin to draft and debate what would become the Equal Protection Clause of the Fourteenth Amendment.[10][11] Additionally, Congress wanted to protect white Unionists who were under personal and legal attack in the former Confederacy.[12] The effort was led by the Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens. It was the most influential of these men, John Bingham, who was the principal author and drafter of the Equal Protection Clause.
The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, Section 5, Clause 1 of the Constitution, to "be the Judge of the ... Qualifications of its own Members", had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that permitted the passage of the Fourteenth Amendment by Congress and subsequently proposed to the states. The ratification of the amendment by the former Confederate states was imposed as a condition of their acceptance back into the Union.[13]
Ratification
With the return to originalist interpretations of the Constitution, many wonder what was intended by the framers of the reconstruction amendments at the time of their ratification. The Thirteenth Amendment abolished slavery but to what extent it protected other rights was unclear.[14] After the Thirteenth Amendment the South began to institute Black Codes which were restrictive laws seeking to keep black Americans in a position of inferiority. The Fourteenth amendment was ratified by nervous Republicans in response to the rise of Black Codes.[14] This ratification was irregular in many ways. First, there were multiple states that rejected the Fourteenth Amendment, but when their new governments were created due to reconstruction, these new governments accepted the amendment.[15] There were also two states, Ohio and New Jersey, that accepted the amendment and then later passed resolutions rescinding that acceptance. The nullification of the two states' acceptance was considered illegitimate and both Ohio and New Jersey were included in those counted as ratifying the amendment.[15]
Many historians have argued that Fourteenth Amendment was not originally intended to grant sweeping political and social rights to the citizens but instead to solidify the constitutionality of the 1866 Civil rights Act.[16] While it is widely agreed that this was a key reason for the ratification of the Fourteenth Amendment, many historians adopt a much wider view. It is a popular interpretation that the Fourteenth Amendment was always meant to ensure equal rights for all those in the United States.[17] This argument was used by Charles Sumner when he used the Fourteenth Amendment as the basis for his arguments to expand the protections afforded to black Americans.[18]
Although the equal protection clause is one of the most cited ideas in legal theory, it received little attention during the ratification of the Fourteenth Amendment.[19] Instead the key tenet of the Fourteenth Amendment at the time of its ratification was the Privileges or Immunities Clause.[16] This clause sought to protect the privileges and immunities of all citizens which now included black men.[20] The scope of this clause was substantially narrowed following the Slaughterhouse Cases in which it was determined that a citizen's privileges and immunities were only ensured at the Federal level and that it was government overreach to impose this standard on the states.[17] Even in this halting decision the Court still acknowledged the context in which the Amendment was passed, stating that knowing the evils and injustice the Fourteenth Amendment was meant to combat is key in our legal understanding of its implications and purpose.[21] With the abridgment of the Privileges or Immunities clause, legal arguments aimed at protecting black American's rights became more complex and that is when the equal protection clause started to gain attention for the arguments it could enhance.[16]
During the debate in Congress, more than one version of the clause was considered. Here is the first version: "The Congress shall have power to make all laws which shall be necessary and proper to secure ... to all persons in the several states equal protection in the rights of life, liberty, and property."[22] Bingham said about this version: "It confers upon Congress power to see to it that the protection given by the laws of the States shall be equal in respect to life and liberty and property to all persons."[22] The main opponent of the first version was Congressman Robert S. Hale of New York, despite Bingham's public assurances that "under no possible interpretation can it ever be made to operate in the State of New York while she occupies her present proud position."[23]
Hale ended up voting for the final version, however. When Senator
It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?
The 39th United States Congress proposed the Fourteenth Amendment on June 13, 1866. A difference between the initial and final versions of the clause was that the final version spoke not just of "equal protection" but of "the equal protection of the laws". John Bingham said in January 1867: "no State may deny to any person the equal protection of the laws, including all the limitations for personal protection of every article and section of the Constitution ..."[25] By July 9, 1868, three-fourths of the states (28 of 37) ratified the amendment, and that is when the Equal Protection Clause became law.[26]
Early history following ratification
Bingham said in a speech on March 31, 1871 that the clause meant no State could deny anyone "the equal protection of the Constitution of the United States ... [or] any of the rights which it guarantees to all men", nor deny to anyone "any right secured to him either by the laws and treaties of the United States or of such State."[27] At that time, the meaning of equality varied from one state to another.[28]
Four of the original thirteen states never passed any laws barring
Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it.
As for public schooling, no states during this era of
Likewise, some states were more favorable to women's legal status than others; New York, for example, had been giving women full property, parental, and widow's rights since 1860, but not the right to vote.[35] No state or territory allowed women's suffrage when the Equal Protection Clause took effect in 1868.[36] In contrast, at that time African American men had full voting rights in five states.[37]
Gilded Age interpretation and the Plessy decision
In the United States, 1877 marked the end of Reconstruction and the start of the
A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins (1886).[39] In it the word "person" from the Fourteenth Amendment's section has been given the broadest possible meaning by the U.S. Supreme Court:[40]
These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws.
Thus, the clause would not be limited to discrimination against African Americans, but would extend to other races, colors, and nationalities such as (in this case) legal aliens in the United States who are Chinese citizens.
In its most contentious Gilded Age interpretation of the Equal Protection Clause,
that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons ... [I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.
Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."[42] Harlan's philosophy of constitutional colorblindness would eventually become more widely accepted, especially after World War II.
Rights of Corporations
In the decades after ratification of the Fourteenth Amendment, the vast majority of Supreme Court cases interpreting the Fourteenth Amendment dealt with the rights of corporations, not with the rights of African Americans. In the period 1868–1912 (from ratification of the Fourteenth Amendment to the first known published count by a scholar), the Supreme Court interpreted the Fourteenth Amendment in 312 cases dealing with the rights of corporations but in only 28 cases dealing with the rights of African Americans. Thus, the Fourteenth Amendment was used primarily by corporations to attack laws that regulated corporations, not to protect the formerly enslaved people from racial discrimination.[43] Granting rights under the Equal Protection Clause of the Fourteenth Amendment to business corporations was introduced into Supreme Court jurisprudence through a series of sleights of hands. Roscoe Conkling, a skillful lawyer and former powerful politicians who had served as a member of the United States Congressional Joint Committee on Reconstruction, which had drafted the Fourteenth Amendment, was the lawyer who argued an important case known as San Mateo County v. Southern Pacific Railroad before the Supreme Court in 1882. In this case, the issue was whether corporations are "persons" within the meaning of the Equal Protection Clause of the Fourteenth Amendment.[44] Conkling argued that corporations were included in the meaning of the term person and thus entitled to such rights. He told the Court that he, as a member of the Committee that drafted this amendment to the Constitutional, knew that this is what the Committee had intended. Legal historians in the 20th Century examined the history of the drafting of the Fourteenth Amendment and found that Conkling had fabricated the notion that the Committee had intended the term "person" of the Fourteenth Amendment to encompass corporations.[45] This San Mateo case was settled by the parties without the Supreme Court issuing an opinion however the Court's misunderstanding of the intention of the Amendment's drafters that had been created by Conkling's likely deliberate deception was never corrected at the time.
A second fraud occurred a few years later in the case of Santa Clara v. Southern Pacific Railroad, which left a written legacy of corporate rights under the Fourteenth Amendment.
"The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment…, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws."
Davis added before the opinion of the Court:
"MR. CHIEF JUSTICE WAITE said: 'The Court does not wish to hear argument on the question of whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of the opinion that it does.'"
In fact, the Supreme Court decided the case on narrower grounds and had specifically avoided this Constitutional issue.[46][47]
The Supreme Court holding
Supreme Court Justice Stephen Field seized on this deceptive and incorrect published summary by the court reporter Davis in Santa Clara v. Southern Pacific Railroad and cited that case as precedent in the 1889 case Minneapolis & St. Louis Railway Company v. Beckwith in support of the proposition that corporations are entitled to equal protection of the law within the meaning of the Equal Protection Clause of the Fourteenth Amendment. Writing the opinion for the Court in Minneapolis & St. Louis Railway Company v. Beckwith, Justice Field reasoned that a corporation is an association of its human shareholders and thus has rights under the Fourteenth Amendment just as the members of the association.[48]
In this Supreme Court case Minneapolis & St. Louis Railway Company v. Beckwith, Justice Field, writing for the Court, thus took this point as established Constitutional law. In the decades that followed, the Supreme Court often continued to cite and to rely on Santa Clara v. Southern Pacific Railroad as established precedent that the Fourteenth Amendment guaranteed equal protection of the law and due process rights for corporations, even though in the Santa Clara case the Supreme Court held or stated no such thing.[49] In the late 19th and early 20th centuries, the clause was used to strike down numerous statutes applying to corporations. Since the New Deal, however, such invalidations have been rare.[50]
Between Plessy and Brown
In Shelley v. Kraemer (1948), the Court showed increased willingness to find racial discrimination illegal. The Shelley case concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could; after all, the Supreme Court reasoned, courts were part of the state.
The companion cases Sweatt v. Painter and McLaurin v. Oklahoma State Regents, both decided in 1950, paved the way for a series of school integration cases. In McLaurin, the University of Oklahoma had admitted McLaurin, an African-American, but had restricted his activities there: he had to sit apart from the rest of the students in the classrooms and library, and could eat in the cafeteria only at a designated table. A unanimous Court, through Chief Justice Fred M. Vinson, said that Oklahoma had deprived McLaurin of the equal protection of the laws:
There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.
The present situation, Vinson said, was the former. In Sweatt, the Court considered the constitutionality of Texas's state system of law schools, which educated blacks and whites at separate institutions. The Court (again through Chief Justice Vinson, and again with no dissenters) invalidated the school system—not because it separated students, but rather because the separate facilities were not equal. They lacked "substantial equality in the educational opportunities" offered to their students.
All of these cases, as well as the upcoming Brown case, were litigated by the
Brown and its consequences
In 1954 the contextualization of the equal protection clause would change forever. The Supreme Court itself recognized the gravity of the Brown v Board decision acknowledging that a split decision would be a threat to the role of the Supreme Court and even to the country.[53] When Earl Warren became Chief Justice in 1953, Brown had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional.[54] In that opinion, Warren wrote:
To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone ... We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.
Warren discouraged other justices, such as
In response to Green, many Southern districts replaced freedom-of-choice with geographically based schooling plans; because
The curtailment of busing in Milliken v. Bradley is one of several reasons that have been cited to explain why equalized educational opportunity in the United States has fallen short of completion. In the view of various liberal scholars, the election of Richard Nixon in 1968 meant that the executive branch was no longer behind the Court's constitutional commitments.[58] Also, the Court itself decided in San Antonio Independent School District v. Rodriguez (1973) that the Equal Protection Clause allows—but does not require—a state to provide equal educational funding to all students within the state.[59] Moreover, the Court's decision in Pierce v. Society of Sisters (1925) allowed families to opt out of public schools, despite "inequality in economic resources that made the option of private schools available to some and not to others", as Martha Minow has put it.[60]
American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, or due to Congressional action, or due to societal change, the percentage of black students attending majority-black school districts decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.[61] In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court held that, if a school system became racially imbalanced due to social factors other than governmental racism, then the state is not as free to integrate schools as if the state had been at fault for the racial imbalance. This is especially evident in the charter school system where parents of students can pick which schools their children attend based on the amenities provided by that school and the needs of the child. It seems that race is a factor in the choice of charter school.[62]
Application to federal government
By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing some of the same restrictions on the federal government: "Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive."[63] In Lawrence v. Texas (2003) the Supreme Court added: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests"[64] Some scholars have argued that the Court's decision in Bolling should have been reached on other grounds. For example, Michael W. McConnell has written that Congress never "required that the schools of the District of Columbia be segregated."[65] According to that rationale, the segregation of schools in Washington D.C. was unauthorized and therefore illegal.
The federal government has at times shared its power to discriminate against noncitizens with states through
Tiered scrutiny
Despite the undoubted importance of Brown, much of modern equal protection jurisprudence originated in other cases, though not everyone agrees about which other cases. Many scholars assert that the opinion of Justice
Whatever its precise origins, the basic idea of the modern approach is that more judicial scrutiny is triggered by purported discrimination that involves "fundamental rights" (such as the right to procreation), and similarly more judicial scrutiny is also triggered if the purported victim of discrimination has been targeted because he or she belongs to a "suspect classification" (such as a single racial group). This modern doctrine was pioneered in Skinner v. Oklahoma (1942), which involved depriving certain criminals of the fundamental right to procreate:[70]
When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.
Until 1976, the Supreme Court usually ended up dealing with discrimination by using one of two possible levels of scrutiny: what has come to be called "strict scrutiny" (when a suspect class or fundamental right is involved), or instead the more lenient "rational basis review". Strict scrutiny means that a challenged statute must be "narrowly tailored" to serve a "compelling" government interest, and must not have a "less restrictive" alternative. In contrast, rational basis scrutiny merely requires that a challenged statute be "reasonably related" to a "legitimate" government interest.
However, in the 1976 case of Craig v. Boren, the Court added another tier of scrutiny, called "intermediate scrutiny", regarding gender discrimination. The Court may have added other tiers too, such as "enhanced rational basis" scrutiny,[71] and "exceedingly persuasive basis" scrutiny.[72]
All of this is known as "tiered" scrutiny, and it has had many critics, including Justice Thurgood Marshall who argued for a "spectrum of standards in reviewing discrimination", instead of discrete tiers.[73] Justice John Paul Stevens argued for only one level of scrutiny, given that "there is only one Equal Protection Clause".[73] The whole tiered strategy developed by the Court is meant to reconcile the principle of equal protection with the reality that most laws necessarily discriminate in some way.[74]
Choosing the standard of scrutiny can determine the outcome of a case, and the strict scrutiny standard is often described as "strict in theory and fatal in fact".[75] In order to select the correct level of scrutiny, Justice Antonin Scalia urged the Court to identify rights as "fundamental" or identify classes as "suspect" by analyzing what was understood when the Equal Protection Clause was adopted, instead of based upon more subjective factors.[76]
Discriminatory intent and disparate impact
Because inequalities can be caused either intentionally or unintentionally, the Supreme Court has decided that the Equal Protection Clause itself does not forbid governmental policies that unintentionally lead to racial disparities, though Congress may have some power under other clauses of the Constitution to address unintentional disparate impacts. This subject was addressed in the seminal case of
The result in Arlington Heights was similar to that in Washington v. Davis (1976), and has been defended on the basis that the Equal Protection Clause was not designed to guarantee equal outcomes, but rather equal opportunities; if a legislature wants to correct unintentional but racially disparate effects, it may be able to do so through further legislation.[78] It is possible for a discriminating state to hide its true intention, and one possible solution is for disparate impact to be considered as stronger evidence of discriminatory intent.[79] This debate, though, is currently academic, since the Supreme Court has not changed its basic approach as outlined in Arlington Heights.
For an example of how this rule limits the Court's powers under the Equal Protection Clause, see
The "Stop and Frisk" policy in New York allows officers to stop anyone who they feel looks suspicious. Data from police stops shows that even when controlling for variability, people who are black and those of Hispanic descent were stopped more frequently than white people, with these statistics dating back to the late 1990s. A term that has been created to describe the disproportionate number of police stops of black people is "Driving While Black." This term is used to describe the stopping of innocent black people who are not committing any crime.
In addition to concerns that a discriminating statute can hide its true intention, there have also been concerns that facially neutral evaluative and statistical devices that are permitted by decision-makers can be subject to racial bias and unfair appraisals of ability.'[81] As the equal protection doctrine heavily relies on the ability of neutral evaluative tools to engage in neutral selection procedures, racial biases indirectly permitted under the doctrine can have grave ramifications and result in 'uneven conditions.' '[81][82] These issues can be especially prominent in areas of public benefits, employment, and college admissions, etc.'[81]
Voting rights
The Supreme Court ruled in Nixon v. Herndon (1927) that the Fourteenth Amendment prohibited denial of the vote based on race. The first modern application of the Equal Protection Clause to voting law came in Baker v. Carr (1962), where the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause.
It may seem counterintuitive that the Equal Protection Clause should provide for equal
If constitutional amendment was the only means by which all men and, later, women, could be guaranteed the right to vote at all, even for federal officers, how can it be that the far less obvious right to a particular kind of apportionment of state legislatures ... can be conferred by judicial construction of the Fourteenth Amendment? [Emphasis in the original.]
Harlan also relied on the fact that Section Two of the Fourteenth Amendment "expressly recognizes the States' power to deny 'or in any way' abridge the right of their inhabitants to vote for 'the members of the [state] Legislature.'"[83] Section Two of the Fourteenth Amendment provides a specific federal response to such actions by a state: reduction of a state's representation in Congress. However, the Supreme Court has instead responded that voting is a "fundamental right" on the same plane as marriage (Loving v. Virginia); for any discrimination in fundamental rights to be constitutional, the Court requires the legislation to pass strict scrutiny. Under this theory, equal protection jurisprudence has been applied to voting rights.
A recent use of equal protection doctrine came in
Sex, disability, and romantic orientation
Originally, the Fourteenth Amendment did not forbid sex discrimination to the same extent as other forms of discrimination. On the one hand, Section Two of the amendment specifically discouraged states from interfering with the voting rights of "males", which made the amendment anathema to many women when it was proposed in 1866.[85] On the other hand, as feminists like Victoria Woodhull pointed out, the word "person" in the Equal Protection Clause was apparently chosen deliberately, instead of a masculine term that could have easily been used instead.[86]
In 1971, the U.S. Supreme Court decided Reed v. Reed, extending the Equal Protection Clause of the Fourteenth Amendment to protect women from sex discrimination, in situations where there is no rational basis for the discrimination.[citation needed] That level of scrutiny was boosted to an intermediate level in Craig v. Boren (1976).[87]
The Supreme Court has been disinclined to extend full "suspect classification" status (thus making a law that categorizes on that basis subject to greater judicial scrutiny) for groups other than racial minorities and religious groups. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class. Many commentators have noted, however—and Justice Thurgood Marshall so notes in his partial concurrence—that the Court did appear to examine the City of Cleburne's denial of a permit to a group home for intellectually disabled people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.[88]
The Court's decision in Romer v. Evans (1996) struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination." The Court rejected as "implausible" the dissent's argument that the amendment would not deprive homosexuals of general protections provided to everyone else but rather would merely prevent "special treatment of homosexuals."[89] Much as in City of Cleburne, the Romer decision seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.[90]
In
While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.[91] Other scholars disagree, arguing that "homophobia" is distinct from sexism, in a sociological sense, and so treating it as such would be an unacceptable judicial shortcut.[92]
In 2013, the Court struck down part of the federal Defense of Marriage Act, in United States v. Windsor. No state statute was in question, and therefore the Equal Protection Clause did not apply. The Court did employ similar principles, however, in combination with federalism principles. The Court did not purport to use any level of scrutiny more demanding than rational basis review, according to law professor Erwin Chemerinsky.[93] The four dissenting justices argued that the authors of the statute were rational.[94]
In 2015, the Supreme Court held in Obergefell v. Hodges that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and required all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other jurisdictions.
Affirmative action
Affirmative action is the consideration of race, gender, or other factors, to benefit an underrepresented group or to address past injustices done to that group. Individuals who belong to the group are preferred over those who do not belong to the group, for example in educational admissions, hiring, promotions, awarding of contracts, and the like.[95] Such action may be used as a "tie-breaker" if all other factors are inconclusive, or may be achieved through quotas, which allot a certain number of benefits to each group.
During
Several important affirmative action cases to reach the Supreme Court have concerned government
In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their
In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice Clarence Thomas in his dissent to Grutter—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one.[97] On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.[98]
In Students for Fair Admissions v. Harvard (2023), and its companion case Students for Fair Admissions v. University of North Carolina (2023), the Supreme Court held that race and ethnicity cannot be used in admissions decisions. In other words, preferential treatment based on race or ethnicity violates The Equal Protection Clause. Although "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise," Chief Justice Roberts made it clear that "universities may not simply establish through application essays or other means the regime we hold unlawful today." Moreover, "what cannot be done directly cannot be done indirectly." These opinions effectively leveled the playing field for all individuals to compete more on merit than on innate characteristics for college admissions. Although the scope and reach of these opinions are unknown, it is not uncommon for Supreme Court cases' rationale to be applied to similar or analogous facts or circumstances.[citation needed]
See also
- Economic egalitarianism
- Egalitarianism
- Equal consideration of interests
- Equal opportunity
- Equal Rights Amendment
- Equality before the law
- Equality feminism
- Equality of autonomy
- Equality of outcome
- Equality of sacrifice
- Racial equality
- Social equality
- Uniform Parental Rights Enforcement and Protection Act
References
- ISBN 978-1-4381-0991-6. Archived from the originalon July 24, 2020.
The equal protection clause guarantees the right of "similarly situated" people to be treated the same way by the law.
- ^ "Fair Treatment by the Government: Equal Protection". GeorgiaLegalAid.org. Carl Vinson Institute of Government at University of Georgia. July 30, 2004. Archived from the original on March 20, 2020. Retrieved July 24, 2020.
The basic intent of equal protection is to make sure that people are treated as equally as possible under our legal system. For example, it is to see that everyone who gets a speeding ticket will face the samEpocedures [sic!]. A further intent is to ensure that all Americans are provided with equal opportunities in education, employment, and other areas. [...] The U.S. Constitution makes a similar provision in the Fourteenth Amendment. It says that no state shall make or enforce any law that will "deny to any person within its jurisdiction the equal protection of the law." These provisions require the government to treat persons equally and impartially.
- ^ "Equal Protection". Legal Information Institute at Cornell Law School. Archived from the original on June 22, 2020. Retrieved July 24, 2020.
Equal Protection refers to the idea that a governmental body may not deny people equal protection of its governing laws. The governing body state must treat an individual in the same manner as others in similar conditions and circumstances.
- JSTOR 3477928. Archived from the originalon 2019-10-13. Retrieved 2019-07-08.
- ^ a b "Dred Scott v. Sandford, 60 U.S. 393 (1856)". Justia Law. Retrieved 2018-11-10.
- JSTOR 25073625.
- S2CID 154345582.
- ISBN 978-0-7355-1250-4.
- ^ See Brest et al. (2000), pp. 242–46.
- ^ Rosen, Jeffrey. The Supreme Court: The Personalities and Rivalries That Defined America, p. 79 (MacMillan 2007).
- ^ Newman, Roger. The Constitution and its Amendments, Vol. 4, p. 8 (Macmillan 1999).
- ^ Hardy, David. "Original Popular Understanding of the 14th Amendment As Reflected in the Print Media of 1866-68", Whittier Law Review, Vol. 30, p. 695 (2008-2009).
- ISBN 978-0-674-00397-2.
- ^ JSTOR 3330348.
- ^ a b "Coleman v. Miller, 307 U.S. 433 (1939)". Justia Law. Retrieved 2018-11-30.
- ^ JSTOR 1121988.
- ^ JSTOR 272626.
- ^ Sumner, Charles, and Daniel Murray Pamphlet Collection. . Washington: S. & R. O. Polkinhorn, Printers, 1874. Pdf. https://www.loc.gov/item/12005313/ .
- JSTOR 1118709.
- ^ "Constitution of the United States - We the People". launchknowledge.com. 10 September 2020.
- ^ "Slaughterhouse Cases, 83 U.S. 36 (1872)". Justia Law. Retrieved 2018-11-10.
- ^ a b Kelly, Alfred. "Clio and the Court: An Illicit Love Affair[permanent dead link]", The Supreme Court Review at p. 148 (1965) reprinted in The Supreme Court in and of the Stream of Power (Kermit Hall ed., Psychology Press 2000).
- ^ Bickel, Alexander. "The Original Understanding and the Segregation Decision", Harvard Law Review, Vol. 69, pp. 35-37 (1955). Bingham was speaking on February 27, 1866. See transcript.
- ^ Curtis, Michael. "Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment", Boston College Law Review, Vol. 38 (1997).
- ^ Glidden, William. Congress and the Fourteenth Amendment: Enforcing Liberty and Equality in the States, p. 79 (Lexington Books 2013).
- ^ Mount, Steve (January 2007). "Ratification of Constitutional Amendments". Retrieved February 24, 2007.
- ^ Flack, Horace. The Adoption of the Fourteenth Amendment, p. 232 (Johns Hopkins Press, 1908). For Bingham's full speech, see Appendix to the Congressional Globe, 42d Congress, 1st Sess., p. 83 (March 31, 1871).
- ^ requires citation
- ^ Wallenstein, Peter. Tell the Court I Love My Wife: Race, Marriage, and Law--An American History, p. 253 (Palgrave Macmillan, Jan 17, 2004). The four of the original thirteen states are New Hampshire, Connecticut, New Jersey, and New York. Id.
- ^ Pascoe, Peggy. What Comes Naturally: Miscegenation Law and the Making of Race in America, p. 58 (Oxford U. Press 2009).
- ^ Calabresi, Steven and Matthews, Andrea. "Originalism and Loving v. Virginia", Brigham Young University Law Review (2012).
- ^ Foner, Eric. Reconstruction: America's Unfinished Revolution, 1863–1877, pp. 321–322 (HarperCollins 2002).
- ^ Bickel, Alexander. "The Original Understanding and the Segregation Decision", Harvard Law Review, Vol. 69, pp. 35–37 (1955).
- ^ Finkelman, Paul. "Rehearsal for Reconstruction: Antebellum Origins of the Fourteenth Amendment", in The Facts of Reconstruction: Essays in Honor of John Hope Franklin, p. 19 (Eric Anderson and Alfred A. Moss, eds., LSU Press, 1991).
- ^ Woloch, Nancy. Women and the American Experience, p. 185 (New York: Alfred A. Knopf, 1984).
- ^ Wayne, Stephen. Is This Any Way to Run a Democratic Election?, p. 27 (CQ PRESS 2013).
- ^ McInerney, Daniel. A Traveller's History of the USA, p. 212 (Interlink Books, 2001).
- ^ Kerber, Linda. No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship, p. 133 (Macmillan, 1999).
- ^ Yick Wo v. Hopkins, 118 U.S. 356 (1886).
- ^ "Annotation 18 - Fourteenth Amendment: Section 1 – Rights Guaranteed: Equal Protection of the Laws: Scope and application state action". FindLaw for Legal Professionals - Law & Legal Information by FindLaw, a Thomson Reuters business. Retrieved 23 November 2013.
- ISBN 978-0-19-514690-5.
- SSRN 1121505.
- ^ Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) p. xv
- ISSN 0017-8322. Archived from the originalon 2007-02-06. Retrieved 2007-02-24.
- ^ Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 128-136
- ^ Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 150-152
- ^ Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). John C. Bancroft was a former railway company president. In the summary of the case Bancroft wrote that the Court declared that it did not need to hear argument on whether the Equal Protection Clause protected corporations, because "we are all of the opinion that it does." Id. at 396. Chief Justice Morrison Waite announced from the bench that the Court would not hear argument on the question whether the equal protection clause applied to corporations: "We are all of the opinion that it does." The background and developments from this utterance are treated in H. Graham, Everyman's Constitution--Historical Essays on the Fourteenth Amendment, the Conspiracy Theory, and American Constitutionalism (1968), chs. 9, 10, and pp. 566-84. Justice Hugo Black, in Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 85 (1938), and Justice William O. Douglas, in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576 (1949), have disagreed that corporations are persons for equal protection purposes.
- Southern Pacific Railroad, the corporation that had filed these lawsuits, and, as a Supreme Court justice and federal appellate judge for years, had a pro-corporationist agenda. (Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 140-143.) Justice Field must have known that in the Santa Clara case the Supreme Court explicitly declined to address the Constitutional issue because, in a companion case to Santa Clara, Justice Field had urged the Court to address precisely this issue by endorsing such corporate rights on Fourteenth Amendment grounds, and he harshly criticized his fellow justices for failing to do so. (Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 156-157)
- ^ Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 156-157
- JSTOR 1599798.
- ^ Feldman, Noah. Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices, p. 145 (Hachette Digital 2010).
- ISBN 978-0-02-922130-3.
- JSTOR 20684748.
- ISBN 978-0-394-72255-9.
- ^ Shimsky, MaryJane. "Hesitating Between Two Worlds": The Civil Rights Odyssey of Robert H. Jackson, p. 468 (ProQuest, 2007).
- ^ I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases, pp. 133–151 (Mark Tushnet, ed. Beacon Press, 2008).
- ^ For a comprehensive history of school desegregation from Brown through Milliken (one on which this article relies for its assertions), see Brest et al. (2000), pp. 768–794.
- JSTOR 1073592.
- ^ Reynolds, Troy. "Education Finance Reform Litigation and Separation of Powers: Kentucky Makes Its Contribution," Kentucky Law Journal, Vol. 80 (1991): 309, 310.
- Yale Law Journal, Vol. 120, p. 814, 819-820 (2011)(Pierce "entrenched the pattern of a two-tiered system of schooling, which sanctions private opt-outs from publicly run schools").
- ^ For data and analysis, see Orfield (July 2001). "Schools More Separate" (PDF). Harvard University Civil Rights Project. Archived from the original (PDF) on 2007-06-28. Retrieved 2008-07-16.
- S2CID 144814662. Retrieved 28 October 2013.
- ^ "FindLaw | Cases and Codes". Caselaw.lp.findlaw.com. 1954-05-17. Retrieved 2012-08-13.
- ^ Lawrence v. Texas, 539 U.S. 598 (2003), at page 2482
- ^ Balkin, J. M.; Bruce A. Ackerman (2001). "Part II". What Brown v. Board of Education should have said : the nation's top legal experts rewrite America's landmark civil rights decision. et al. New York University Press. p. 168.
- ^ Ayers, Ava (2020). "Discriminatory Cooperative Federalism". Villanova Law Review. 65 (1).
- ISBN 0-674-19637-6.
- ^ Goldstein, Leslie. "Between the Tiers: The New(est) Equal Protection and Bush v. Gore Archived 2016-03-04 at the Wayback Machine", University of Pennsylvania Journal of Constitutional Law, Vol. 4, p. 372 (2002) .
- ^ Farber, Daniel and Frickey, Philip. "Is Carolene Products Dead--Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation", California Law Review, Vol. 79, p. 685 (1991). Farber and Frickey point out that "only Chief Justice Hughes, Justice Brandeis, and Justice Roberts joined Justice Stone's footnote", and in any event "It is simply a myth ... that the process theory of footnote four in Carolene Products is, or ever has been, the primary justification for invalidating laws embodying prejudice against racial minorities."
- ^ Skinner v. Oklahoma, 316 U.S. 535 (1942). Sometimes the "suspect" classification strand of the modern doctrine is attributed to Korematsu v. United States (1944), but Korematsu did not involve the Fourteenth Amendment, and moreover it came later than the Skinner opinion (which clearly stated that both deprivation of fundamental rights as well as oppression of a particular race or nationality were invidious).
- ^ See City of Cleburne v. Cleburne Living Center, Inc. (1985)
- ^ See United States v. Virginia (1996).
- ^ a b Fleming, James. "'There is Only One Equal Protection Clause': An Appreciation of Justice Stevens's Equal Protection Jurisprudence", Fordham Law Review, Vol. 74, p. 2301, 2306 (2006).
- ^ See Romer v. Evans, 517 U.S. 620, 631 (1996): "the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons."
- ^ Curry, James et al. Constitutional Government: The American Experience, p. 282 (Kendall Hunt 2003) (attributing the phrase to Gerald Gunther).
- ^ Domino, John. Civil Rights & Liberties in the 21st Century, pp. 337-338 (Pearson 2009).
- ^ Kroll, Joshua (2017). "Accountable Algorithms (Ricci v. DeStefano: The Tensions Between Equal Protection, Disparate Treatment, and Disparate Impact)". University of Pennsylvania Law Review. 165: 692.
- ^ Herzog, Don (March 22, 2005). "Constitutional Rights: Two". Left2Right. Note that the Court has put significant limits on the congressional power of enforcement. See City of Boerne v. Flores (1997), Board of Trustees of the University of Alabama v. Garrett (2001), and United States v. Morrison (2000). The Court has also interpreted federal statutory law as limiting the power of states to correct disparate effects. See Ricci v. DeStefano (2009).
- JSTOR 1228797.
- JSTOR 1143133.
- ^ a b c Feingold, Jonathon (2019). "Equal Protection Design Defects". Temple Law Review. 91.
- JSTOR 24758720.
- ^ Van Alstyne, William. "The Fourteenth Amendment, the Right to Vote, and the Understanding of the Thirty-Ninth Congress", Supreme Court Review, p. 33 (1965).
- ISBN 978-0-226-21307-1.
- ^ Cullen-Dupont, Kathryn. Encyclopedia of Women's History in America, pp. 91-92 (Infobase Publishing, Jan 1, 2009).
- ^ Hymowitz, Carol and Weissman, Michaele. A History of Women in America, p. 128 (Random House Digital, 2011).
- ^ Craig v. Boren, 429 U.S. 190 (1976).
- ISSN 0040-4411.
- ^ Kuligowski, Monte. "Romer v. Evans: Judicial Judgment or Emotive Utterance?," Journal of Civil Rights and Economic Development, Vol. 12 (1996).
- ISSN 0019-6665.
- ISSN 0028-7881.; see also Fricke v. Lynch, 491 F.Supp. 381, 388, fn. 6 (1980), vacated 627 F.2d 1088 [case decided on First Amendment free-speech grounds, but "This case can also be profitably analyzed under the Equal Protection Clause of the fourteenth amendment. In preventing Aaron Fricke from attending the senior reception, the school has afforded disparate treatment to a certain class of students those wishing to attend the reception with companions of the same sex."]
- ^ Gerstmann, Evan. Same Sex Marriage and the Constitution, p. 55 (Cambridge University Press, 2004).
- ^ Chemerinsky, Erwin. "Justice Kennedy's World Archived 2013-07-09 at the Wayback Machine", The National Law Journal (July 1, 2013): "There is another similarity between his opinion in Windsor and his earlier ones in Romer and Lawrence: the Supreme Court invalidated the law without using heightened scrutiny for sexual-orientation discrimination ... A law based on animus fails to meet even rational-basis review so there was no need to adopt a higher level of scrutiny."
- ^ United States v. Windsor Archived 2015-04-27 at the Wayback Machine, No. 12-307, 2013 BL 169620, 118 FEP Cases 1417 (U.S. June 26, 2013).
- ^ "Affirmative Action". Stanford University. Retrieved April 6, 2012.
- JSTOR 1073012.
- ^ See Schuck, Peter H. (September 5, 2003). "Reflections on Grutter". Jurist. Archived from the original on 2005-09-09.
- JSTOR 796412.
External links
- Original Meaning of Equal Protection of the Laws Archived 2011-07-09 at the Wayback Machine, Federalist Blog
- Equal Protection: An Overview, Cornell Law School
- Equal Protection, Heritage Guide to the Constitution
- Equal Protection (U.S. law), Encyclopædia Britannica
- Naderi, Siavash. "The Not So Definite Article", Brown Political Review (November 16, 2012).