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The constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness. The Declaration of Independence states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The concept of equal protection and equality in the United States is as old as the country itself. In 1776, Thomas Jefferson and the American colonists boldly announced the "self-evident" truth of human equality. Yet the meaning of equality was neither obvious nor clearly defined. The "peculiar institution" of slavery was intricately woven into U.S. economic, social, and political fabric. Many Americans owned slaves, and most, including Jefferson himself, believed in the inferiority of the black race. James Madison and the other Founding Fathers drafted a national constitution that protected the slave trade and recognized the rights of slave owners. Article I, Section 2, of the Constitution of the United States counted a slave as only three-fifths of a person for the purposes of representation in Congress.
Slave codes permitted slave masters to buy, sell, and lease blacks like personal property. Slaves owed their masters an unqualified duty of obedience. Slave owners, on the other hand, were free to do as they pleased, short of murdering their slaves. Only community mores, common sense, and individual conscience restrained slave owners. Very few laws protected slaves from abusive or maniacal masters, and those that did were seldom enforced. In 1857, the U.S. Supreme Court placed its stamp of approval on the institution of slavery, holding that slaves were not "citizens" within the meaning of the Constitution, but only "property" lacking any constitutional protection whatsoever (Dred Scott v. Sandford 60 U.S., 15 L. Ed. 691 [19 How.] 393).
From the inception of the United States, then, a gulf has separated the Jeffersonian ideal of human equality from the reality of racial inequality under the law. The tension separating the aspirations of the Declaration of Independence from the barbarism of slavery ultimately erupted in the U.S. Civil War. The victory won by the North in the War between the States ended the institution of slavery in the United States and commenced the struggle for civil rights that was to continue into the twenty-first century. This struggle began with the ratification of the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments during the Reconstruction period following the Civil War.
The Thirteenth Amendment abolished slavery and involuntary servitude, except when imposed as punishment for a crime. The Fifteenth Amendment did not expressly grant black citizens the right to vote, but it prohibited state and federal governments from denying this right based on "race, color, or previous condition of servitude." Each amendment gave Congress the power to enforce its provisions with "appropriate legislation."
Although both of these amendments were important, the Fourteenth Amendment has had the greatest influence on the development of civil rights in the United States. Section 1 of the Fourteenth Amendment provides that
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.
The first clause emasculated the Dred Scott decision by bestowing national citizenship upon all blacks born or naturalized in the United States, making them eligible for federal protection of their civil rights. The Privileges and Immunities clause, once believed a potential source for civil rights, was narrowly interpreted by the Supreme Court in 1873 and has since remained dormant (Slaughter-house cases, 83 U.S., 21 L. Ed. 394 [16 Wall.] 36).
The Equal Protection Clause was also narrowly interpreted by the Supreme Court in the nineteenth century, but it still became the centerpiece of the civil rights movement after World War II (1939–45). It spawned desegregation, integration, and affirmative action and it promoted equal treatment and concern for the races under state law. It also provided the country with a starting point for a meaningful dialogue regarding the problems of inequality and discrimination. This dialogue has manifested itself in U.S. constitutional, statutory, and common law.
Inequalities during Reconstruction The ratification of the Fourteenth Amendment occurred during a period in U.S. history known as the Reconstruction. In this era, the South was placed under military occupation by the North, and African Americans realized some short-term benefits. Ku Klux Klan violence was temporarily curbed. Black codes, passed by southern states after the Civil War to replace slavery with a segregated system based on social caste, were dismantled. Blacks were elected to state and federal office. Some achieved prominent status in legal circles, including one African American who obtained a seat on the South Carolina Supreme Court.
But Reconstruction was not a substitute for civil rights, and the improvements realized by African Americans proved evanescent. By 1880 the North's passion for equality had atrophied, as had its interest in the fate of African Americans. In the vacuum left by federal withdrawal, southern racism flourished and Klan terrorism burgeoned. Labor codes were passed relegating blacks to virtual serfdom. These codes made it illegal for anyone to lure blacks away from their job for any reason, including better working conditions and wages. Some codes provided criminal penalties for African Americans who quit their job, even when no debt was owed to their employer.
Advancements made during Reconstruction were further eroded when the Supreme Court invalidated the Civil Rights Act of 1875 (Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 ). This act proclaimed "the equality of all men before the law" and promised to "mete out equal and exact justice" to persons of every "race, color, or persuasion" in public or private accommodations alike. In striking down the law, the Supreme Court said that when
a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be a special favorite of the law.
The Court was not persuaded that this act was the type of "appropriate legislation" contemplated by the Fourteenth Amendment.
The Rise and Fall of Separate but Equal The Supreme Court's laissez-faire attitude toward racial inequality was also reflected in the area of segregation. As Reconstruction collapsed, southern states gradually passed statutes formally segregating the races in every facet of society. Public schools, restaurants, restrooms, railroads, real property, prisons, and voting facilities were all segregated by race. The Supreme Court placed its imprimatur on these forms of racial apartheid in the landmark decision Plessy v. Ferguson 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).
Homer Plessy, who was seven-eighths Caucasian and one-eighth African, was prohibited from traveling on a railway coach for whites, under a Louisiana statute requiring "equal but separate accommodations" for black and white passengers. The Supreme Court, in an 8 to 1 decision, said this statute did not violate the Equal Protection Clause of the Fourteenth Amendment: "The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but …it could not have been intended to abolish distinctions based upon color, or to enforce …a commingling of the two races upon terms unsatisfactory to either." The Fourteenth Amendment, the Court concluded, was "powerless to eradicate racial instincts or to abolish distinctions based on physical differences."
Following Plessy, the "separate-but-equal" doctrine remained the lodestar of Fourteenth Amendment jurisprudence for over half a century. Legally prescribed segregation was upheld by the Court in a litany of public places, including public schools. As Adolf Hitler rose to power in Germany during the 1930s, however, many U.S. citizens began to reconsider their notions of equality. Nazi policies of Aryan superiority, racial purity, ethnic cleansing, and extermination made many U.S. citizens view segregation in a more negative light. The juxtaposition of the Allied powers fighting totalitarianism in World War II and the citizenry practicing racial discrimination in the United States seemed hypocritical to many, especially when segregated African American troops were sacrificing their lives on the battlefield.
A series of Supreme Court decisions began to limit the scope of the separate-but-equal doctrine. The first hint of the Court's changing perspective came in the footnote to an otherwise forgettable case, United States v. Carolene Products, 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938). In Carolene Products, the Court upheld a federal statute regulating commerce, applying a presumption of constitutionality to legislation in this area. However, in footnote 4, the Court cautioned that this presumption may not apply to legislation "directed at national … or racial minorities … [where] prejudice against discrete and insular minorities may be a special condition, which tends to seriously curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial scrutiny."
The Court employed a "more searching judicial scrutiny" in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 (1938). This case involved a black applicant who was denied admission to the University of Missouri Law School solely because of his color. The state of Missouri, which had no law school for blacks, attempted to fulfill its separate-but-equal obligations by offering to pay for the black applicant's tuition at a comparable out-of-state law school. The Supreme Court held that this arrangement violated the applicant's Fourteenth Amendment rights. The Court ruled that Missouri was required to provide African American law students with equal educational opportunities within its own borders, and could not shirk this responsibility by relying on educational opportunities offered in neighboring states.
When states did offer black students a separate Legal Education, the Supreme Court closely examined the quality of the educational opportunities afforded to each race in the segregated schools. In Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114 (1950), the Court ruled that the segregated facilities offered to black and white law students in Texas were not substantially equal. The Court determined that the faculty, library, and courses offered at the African American law school were patently inferior and denied the black students equal protection of the laws.
On the same day Sweatt was decided, the Court invalidated Oklahoma's attempt to segregate graduate students of different races within a single educational facility (McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 ). Black law students at the
University of Oklahoma were required to attend class in an anteroom designated for "coloreds only," study on the mezzanine of the library, and eat in the cafeteria at a different time than white students. The Court struck down these arrangements, determining that segregation impaired the students' "ability to study, engage in discussions, exchange views … and in general, learn [the] profession." According to the Court, the Fourteenth Amendment required the integration of black and white graduate students.
Brown v. Board of Education Plessy, Carolene Products, and so forth, foreshadowed the watershed equal protection decision handed down by the U.S. Supreme Court in 1954, Brown v. Board of Education 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873. Brown reviewed four consolidated cases in which local governments segregated public schools by race. In each case, black students were denied admission on an integrated basis. The question before the Court was not whether the segregated educational facilities were of a similar quality. Instead, the question was whether, under any circumstances, segregated educational opportunities could ever be equal, or substantially equal, in nature. In a resounding, unanimous opinion, the Court said that separate-but-equal education is "inherently unequal" and "has no place" in the field of public education.
Citing Sweatt and McLaurin, the Court reiterated that students' ability to learn is stunted without exposure to the viewpoints of different races. The Court also underscored the sociological and psychological harm segregation inflicts on minority children, finding that segregation "is usually interpreted as denoting the inferiority of the Negro group." The Court added, "Segregation with the sanction of law … has a tendency to [retard] the educational and mental development of Negro children and deprive them of some of the benefits they would receive in a racial[ly] integrated school system."
When the Brown decision was announced, observers realized that the rationale applied by the Court had far-reaching consequences. If segregation in public schools denoted the inferiority of African Americans, so did segregation elsewhere in society. If integration enhanced educational opportunities for U.S. citizens of every race, then perhaps integration could spur economic growth and social development. Observers also realized that if segregation in public schools violated the Equal Protection
Clause, then all forms of government-imposed segregation were vulnerable to constitutional attack.
Modern Equal Protection Jurisprudence Over the next forty years, the Supreme Court demonstrated that the principles enunciated in Brown were not limited to racial segregation and discrimination. In addition to striking down most legislative classifications based on race, the Court closely examined classifications based on length of state residency, U.S. citizenship, and gender. The Court looked carefully at legislation denying benefits to children born out of wedlock. Government classifications denying any group a fundamental right were also reviewed with judicial skepticism.
The Supreme Court has recognized that nearly all legislation classifies on the basis of some criteria, bestowing benefits or imposing burdens on one group and denying them to another. For example, the government offers veterans, indigent people, and elderly people free or low-cost medical services that are not available to the rest of society. Progressive tax rates impose higher rates of taxation on the wealthy. Few such classifications are perfectly drawn by the legislature.
Most classifications are either overinclusive or underinclusive. An overinclusive classification contains all persons who are similarly situated and also persons who should not be included. Legislation that is intended to protect poor and fragile elderly people but actually extends to all senior citizens is overinclusive. An underinclusive classification excludes some similarly situated persons from the intended legislative benefit or detriment. Legislation that is designed to eliminate fraud in government but actually excludes executive branch employees from its regulatory grasp is underinclusive. Some classifications can be both underinclusive and overinclusive.
Although most plaintiffs contend they are members of a historically vulnerable group to which the Supreme Court has given special protection, this is not always the case. In Village of Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000), the Supreme Court ruled that anyone who claims to have been singled out for adverse, irrational government action may bring a lawsuit based on the violation of the Equal Protection Clause. In effect, a person can become a "class of one."
The Supreme Court has developed a three-tiered approach to examine all such legislative classifications. Under the first tier of scrutiny, known as strict scrutiny, the Court will strike down any legislative classification that is not necessary to fulfill a compelling or overriding government objective. Strict scrutiny is applied to legislation involving suspect classifications and fundamental rights. A suspect classification is directed at the type of "discrete and insular minorities" referred to in the Carolene Products footnote. A fundamental right is a right that is expressly or implicitly enumerated in the U.S. Constitution, such as freedom of speech or assembly. Most legislation reviewed by the Supreme Court under the strict scrutiny standard has been invalidated, because very few classifications are necessary to support a compelling government objective.
The second tier of scrutiny used by the Court to review legislative classifications is known as heightened, or intermediate, scrutiny. Legislation will not survive heightened scrutiny unless the government can demonstrate that the classification is substantially related to an important societal interest. Gender classifications are examined under this middle level of review, as are classifications that burden extramarital children.
The third tier of scrutiny involves the least amount of judicial scrutiny and is known as the rational relationship test. The Supreme Court will approve legislation under this standard so long as the classification is reasonably related to a legitimate government interest. The rational relationship test permits the legislature to employ any classification that is conceivably or arguably related to a government interest that does not infringe upon a specific constitutional right. An overwhelming majority of social and economic laws are reviewed and upheld by courts using this minimal level of scrutiny.
Classifications Based on Race Applying strict scrutiny, the Supreme Court has consistently struck down legislative classifications based on race. Relying on the Brown decision, the Court struck down a series of state laws segregating parks, playgrounds, golf courses, bathhouses, beaches, and public transportation. Because the Fourteenth Amendment protects against only government discrimination, discrimination by private individuals or businesses is not proscribed under the Equal Protection Clause unless the government is significantly involved in the private activity. Although the Equal Protection Clause does not offer protection against discriminatory laws promulgated by the president, Congress, or federal administrative agencies, the Supreme Court has interpreted the Due Process Clause of the Fifth Amendment to provide such protection (Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 ).
The equal protection guarantee extends not only to laws that obviously discriminate on their face as did the laws that intentionally segregated races in public schools, but also to government action having a discriminatory purpose, effect, or application. Governmental activity with a discriminatory purpose, also known as purposeful discrimination, may occur when a prosecutor exercises a peremptory challenge (the right to exclude a juror without assigning a reason or legal cause) to exclude a member of a minority race from a jury (Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 ). If the prosecutor is unable to articulate a reason for striking the juror that is unrelated to race, the peremptory challenge will be nullified by the court.
The discriminatory impact of a race-neutral classification may also doom legislation under the Fourteenth Amendment. For example, following the demise of Reconstruction, many former Confederate states enacted legislation requiring residents to pass literacy tests before they could register to vote, but exempted persons who had been qualified to vote at an earlier time when blacks were disenfranchised slaves (i.e., Caucasians). This "grandfather clause" exemption was struck down by the Supreme Court because of its discriminatory impact on African Americans. The Court also struck down other voting restrictions, including "white primaries," which excluded African Americans from participating in a state's electoral process for selecting delegates to a political party convention.
A law can be neutral on its face or in purpose, but still be applied in a discriminatory manner. In Yick Wo v. Hopkins 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), the Supreme Court struck down a San Francisco ordinance banning the operation of hand laundries in wooden buildings, because local officials were closing down only laundries owned by persons of Asian descent. White owners of such institutions were permitted to keep their businesses open.
Proof of discriminatory purpose, effect, or application can be difficult. Courts will search the legislative history of a particular classification for discriminatory origins. Courts also consider specific discriminatory actions taken by state officials in the past. Statistical evidence is relevant as well, but insufficient to establish discrimination by itself (McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 ).
McCleskey involved a black man who was convicted and sentenced to death for killing a white police officer. On appeal, attorneys for the defendant relied on a sophisticated statistical analysis indicating that blacks were significantly more likely to receive the death penalty for killing a white person than were whites convicted of killing a black person. In a 5 to 4 decision, the Supreme Court said this evidence was not enough to demonstrate that the defendant had been denied equal protection. The majority held that the defendant could have prevailed under the Fourteenth Amendment only if he had shown a discriminatory purpose on the part of the Georgia legislature when it enacted the death penalty legislation, or on the part of the jurors in his trial when they imposed the death sentence.
Racial Classifications Surviving Judicial Scrutiny Classifications based on race usually sound the death knell for the legislation containing them, with two notable exceptions. The first involves the internment of Americans with Japanese ancestry during World War II, and the second comes in the area of affirmative action.
Japanese American Internment Pursuant to concurrent presidential, congressional, and military action, over one hundred thousand Japanese Americans were confined to "relocation camps" throughout the United States during World War II. Despite Justice Hugo L. Black's assertion that all race-based legal classifications are "immediately suspect" and subject to the "most rigid scrutiny," the Supreme Court ruled in United States v. Korematsu, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), that the internment did not violate the Equal Protection Clause. Deferring to the combined war powers of the president and Congress, the Court said relocation of these U.S. citizens was a "military urgency" in the war against Japan, justified by concern over domestic espionage, sabotage, and subversion. Justices Owen_Josephus_Roberts, Frank Murphy, and Robert H. Jackson dissented, arguing that no evidence of disloyalty had been produced against any of the interned Japanese Americans. Korematsu stands as the only case in which the Supreme Court has upheld a racial classification under the strict scrutiny standard.
Affirmative Action Affirmative action, sometimes called benign discrimination because it is considered less harmful than other forms of discrimination, is represented by government programs created to remedy past discrimination against blacks, women, and members of other protected groups. These programs include special considerations given to minorities competing against the rest of society for jobs, promotions, and admission to colleges and universities. Opponents of affirmative action characterize it as reverse discrimination because it often excludes individuals with ostensibly superior credentials, solely on account of their race or gender.
The Supreme Court has vacillated on what level of scrutiny applies to affirmative action programs. In Regents of University of California v. Bakke 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), in which there was no majority opinion, four justices applied heightened scrutiny in holding that a university may consider racial criteria as part of a competitive admission process, so long as it does not use fixed quotas. But in Richmond v. J. A. Croson Co., 488 U.S. 469 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), five justices applied strict scrutiny to invalidate an affirmative action program intended to increase the number of minority-owned businesses awarded city construction contracts.
As of 2003, it appears that a majority of justices favor application of strict scrutiny to cases involving benign discrimination (not obvious or intentional). When the more stringent level of scrutiny has been applied in these cases, the Court has held that a general legislative desire to correct past injustices was not sufficiently compelling to warrant a racial preference for minorities. Instead, the Court has ruled, benign racial preferences will be tolerated under the Fourteenth Amendment only when the government can demonstrate that they are narrowly tailored to correct specific discriminatory practices by the government itself or by some private sector entity within its jurisdiction.
Lower federal courts and state courts have struggled with the proper analysis of affirmative action programs in light of the line of Supreme Court decisions. Some of the more high profile cases have focused upon affirmative actions in state universities. In Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), the Fifth Circuit Court of Appeals found that a program at the University of Texas School of Law that provided "substantial" racial preferences to African and Mexican Americans in its admissions policies violated the Fourteenth Amendment. The school based its admission of prospective students on the students' undergraduate grade point averages and scores on the Law School Admission Test (LSAT). Requirements for entry for minority candidates were lower than those for other "non-preferred" candidates, including Caucasians.
The Fifth Circuit held that the university's program failed to serve a compelling state interest and, even if it had, it was not narrowly tailored to serve any compelling state interest. The case garnered national attention and was heavily criticized by minority groups. The Supreme Court denied certiorari in the case, allowing the ruling to stand. Thus, schools in Texas, Mississippi, and Louisiana are forbidden from using race as a consideration in admissions policies. Litigation in the case continued for several years following the decision.
Other circuits have reached opposite results, often explicitly rejecting the Hopwood analysis. The Ninth Circuit, in Smith v. University of Washington, Law School, 233 F.3d 1188 (9th Cir. 2000), found that a properly designed and operated race-conscious admissions program would not violate the Fourteenth Amendment. The law school at the University of Washington employed an affirmative action program when it considered the admission of law students. Although the Ninth Circuit eventually held that the case was moot because the law school had voluntarily stopped using race as a criteria, the court noted that Bakke continued to have vitality, thus allowing race to be used as a criterion so long as schools did not establish quotas.
Classifications Based on Gender The Supreme Court has established that gender classifications are subject to intermediate scrutiny. The seminal case in this area is Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), which involved an Oklahoma law permitting females between the ages of eighteen and twenty to purchase 3.2 percent beer, but restricting males from purchasing such beer until they reached age twenty-one. The state defended the statute by introducing traffic statistics that suggested that men were more likely than women to be arrested for drunk driving before age twenty-one. The Court agreed that enhanced traffic safety was an "important" government interest but disagreed that the gender line drawn by the state would "substantially" serve this interest.
Although many cases regarding classifications based on gender have involved discriminatory actions against women, some men have successfully brought cases alleging sex discrimination in violation of the Equal Protection Clause. For example, in Hill v. Ross, 183 F.3d 586 (7th Cir. 1999), the Seventh Circuit determined that a school's decision not to hire a male university professor solely on the grounds of his gender could be a violation of the Equal Protection Clause and federal statutory law. In Hill, a university department refused to hire either of two male candidates because it wished to maintain a certain proportion of women on its faculty. The court reversed a summary judgment granted by the district court because an issue of material fact existed as to whether prior instances of discrimination based on sex necessitated the university's policy.
Alienage, State Residency, and Legitimacy Classifications The Supreme Court has held that legislation discriminating against aliens who are properly within the United States is considered suspect and will be upheld only if the classification is necessary to serve a compelling government interest. In at least one alienage case, however, the Court has applied only heightened scrutiny to invalidate a state law preventing undocumented children from enrolling in the Texas public school system (Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 ). The Court continues to call classifications based on alienage suspect but may not always apply the most rigorous scrutiny to such legislation.
State laws that condition government benefits on length of state residency have also been deemed suspect by the Supreme Court. In Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), the Court ruled that legislation denying government benefits to persons residing in a state for less than a year violated the Equal Protection Clause. Although states may restrict welfare, educational, and other government benefits to bona fide residents, the Court wrote, they may not restrict the dispensation of government benefits in a way that would unduly burden the right to interstate travel or deprive interstate travelers of the right to be treated as equal to other state residents. Since Shapiro, the Supreme Court has occasionally applied more moderate scrutiny to legislation burdening interstate travelers, prompting critics to assail the Court for its inconsistent application of the three-tiered analysis.
State laws that discriminate against children born out of wedlock are subject to heightened scrutiny. State legislation has been struck down for denying illegitimate children inheritance rights, welfare benefits, and child support when such rights were offered to legitimate children. Although illegitimacy is not a suspect classification subject to strict scrutiny, courts do provide meaningful review of such statutes. The Supreme Court is sensitive to penalizing children for their extramarital status when the children themselves are not responsible for that status.
Classifications Involving Sexual Preference In Romer v. Evans 517 U.S. 620, 116 S. Ct. 1620, L. Ed. 2d (1996), the U.S. Supreme Court reviewed a Colorado state constitutional amendment that prohibited any branch of the state or local governments from taking action designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation." The immediate effect of the amendment, known popularly as "Amendment 2," was to repeal all existing statutes, regulations, ordinances, and governmental policies that barred discrimination based on sexual preference. Under Amendment 2, state officials and private entities would have been permitted to discriminate against gays and lesbians in a number of areas, including insurance, employment, housing, and welfare services.
The state of Colorado defended Amendment 2 by arguing that it did nothing more than place homosexuals on a level playing field with all other state residents. The amendment, Colorado submitted, simply denied gays and lesbians any "special rights." The Supreme Court disagreed, holding that Amendment 2 violated the Equal Protection Clause because it "identifies persons by a single trait and then denies them protection across the board," which is something "unprecedented in our Jurisprudence."
Writing for a six-person majority, Justice Anthony Kennedy explained that "Equal Protection of the laws is not achieved through indiscriminate imposition of inequalities." The associate justice said that "[r]espect for this principle" demonstrates "why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare." Amendment 2 is unconstitutional, Kennedy concluded, because any law that generally makes it "more difficult for one group of citizens than all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense."
Classifications Involving Fundamental Rights A fundamental right is a right expressly or implicitly enumerated by the U.S. Constitution. In Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), Justice Benjamin N. Cardozo wrote that these freedoms represent "the very essence of a scheme of ordered liberty … principles so rooted in the traditions and conscience of our people as to be ranked as fundamental." During the nation's first century, freedom of contract and various property rights were deemed fundamental. In the twentieth century, more personal liberties have been recognized as such. These freedoms include most of those explicitly contained in the Bill of Rights, such as freedom of speech, freedom of religion, freedom of assembly, right to counsel, right against unreasonable search and seizure, right against self-incrimination, right against double jeopardy, right to a jury trial, and right to be free from cruel and unusual punishment. They also include freedoms specifically mentioned elsewhere in the Constitution, such as the right to vote. In the late twentieth century, the Supreme Court began to find that fundamental rights embodied freedoms that were not expressly enumerated by the Constitution but that may be fairly inferred by one of its provisions, such as the rights to personal autonomy and privacy.
Relying on the doctrine of incorporation, the Supreme Court has made these fundamental constitutional principles applicable to the states through the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Court has concluded, in a series of decisions, that these freedoms are so important to the preservation of liberty that they must be equally conferred upon the citizens of every state. No state may provide its residents with less protection of these fundamental rights than is offered under the federal Constitution. The Fourteenth Amendment thus guarantees state citizens equal protection under the laws, by creating a minimum federal threshold of essential freedoms each state must recognize.
In Gideon v. Wainright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), Clarence Earl Gideon was charged with entering a poolroom with the intent to commit a misdemeanor. Before trial, Gideon, an indigent, asked the judge to appoint an attorney to represent him because he could not afford one. The court denied Gideon's request, and a jury later convicted him. Gideon's request for a court-appointed counsel in a misdemeanor case would have been denied in many states at that time. The Supreme Court held that all states must thereafter provide court-appointed counsel at every critical stage of a criminal proceeding, whether the proceeding concerned a misdemeanor, felony, or capital offense. The right to counsel is too fundamental for any state to ignore.
The year after Gideon was decided, the Supreme Court handed down another ground-breaking decision in the area of fundamental rights. Reynolds v. Sims 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), involved the dilution of Voting Rights through legislative apportionment in Alabama. Legislative apportionment refers to the manner in which a state, county, or municipality is divided for purposes of determining legislative representation. Some states are divided into voting precincts, whereas others are divided into wards or districts.
In Reynolds, the voting subdivisions were so unevenly apportioned that a distinct minority of Alabama voters were electing a majority of the state legislators. As a result, voters in less populated electoral subdivisions had more voting power than did voters in more populated electoral subdivisions. The Supreme Court struck down this arrangement under the Fourteenth Amendment, holding that every voter has a fundamental right to cast a ballot of equal weight. The Court had earlier applied this one-person, one-vote principle to federal congressional districts, requiring that all such districts be as nearly equal in population as practicable (Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 ).
In addition to the Fourteenth Amendment of the U.S. Constitution, most state constitutions provide equal protection guarantees and enumerate certain fundamental rights. In many of the states with these constitutions, courts also employ a three-tiered analysis similar to that developed by the U.S. Supreme Court. State courts can interpret their own constitution to provide more, but not less, protection than that offered under the federal Equal Protection Clause.
The Fourteenth Amendment authorizes Congress to enact "appropriate legislation" to enforce the Equal Protection Clause. The Commerce Clause provides Congress with the authority to enact legislation that affects interstate commerce, an even broader power. Pursuant to these clauses, Congress has enacted major pieces of legislation that have extended protection against discrimination beyond that contained in the Constitution.
The Civil Rights Act of 1871 (42 U.S.C.A. § 1983 et seq.) was an early piece of such legislation. Section 1983 of the act, passed when Ku Klux Klan violence was widespread, created a federal remedy, namely money damages, for individuals whose constitutional rights had been violated by state officials. Although this statute has been influential and frequently litigated, no relief will be granted under it unless "state action" can be demonstrated.
The term, "state action," refers to a discriminatory act committed by a government official or agent. Such action may be taken by a legislative, executive, judicial, or administrative body, or some other person or entity acting under "color of law." Section 1983 does not apply to wholly private or nongovernmental conduct. If action is taken by a private individual cloaked with some measure of state authority, courts will find state action if one of four tests is satisfied: (1) public function test—state action is found where the government has delegated its traditional responsibilities, such as police protection, to a private party or agency; (2) nexus test—state action is found where there is a sufficiently close connection between the government and a private actor, such as where the state owns or leases property on which private discrimination occurs; (3) state compulsion test—state action is found where the government coerces or significantly encourages private conduct, such as where federal regulations require private railways to conduct urinalysis after accidents; (4) joint action test—state action is found where the government is a willful participant in discrimination by a private actor.
Other congressional legislation prohibits discrimination in the private sector. Title VII of the 1964 Civil Rights Act prohibits employers from hiring or firing employees on the basis of race, color, sex, or national origin (42 U.S.C.A. § 2000e-2 et seq.). Federal courts have interpreted Title VII to prohibit hostile work environments involving sexual harassment, even when the perpetrator and victim are the same gender. The Age Discrimination in Employment Act (29 U.S.C.A. § 623 et seq.) extends Title VII protections to employment decisions based on age and is applicable to persons between the ages of forty and seventy. Under both statutes, employers may defend their actions by demonstrating nondiscriminatory reasons for a particular decision, such as the dishonesty or incompetency of a discharged employee.
The Americans with Disabilities Act (ADA) (42 U.S.C.A. § 1211 et seq.) prohibits discrimination against "qualified individuals" based on a "physical or mental impairment that substantially limits one or more" of an individual's "major life activities." Title I of the ADA applies to employers and requires them to make "reasonable accommodations" for disabled employees who are otherwise qualified to perform a job, unless such accommodations would cause undue hardship to the business. Such accommodations can include making existing facilities more accessible, permitting part-time or modified work schedules, and reassigning jobs.
Title II applies to public entities, including any department, agency, or other instrumentality of a state or local government. The ADA does not apply to the federal government, but other legislation does protect disabled federal employees. Title III of the ADA governs public accommodations such as restaurants, theaters, museums, stores, daycare centers, and hospitals. The word disability includes terminal illnesses and prevents health care facilities from failing to treat patients diagnosed with AIDS or HIV.
Many state statutes also promote equal protection by prohibiting discrimination. Legislation from several states combines many of the federal protections under a single category of human rights law. Depending on the particular jurisdiction and issue at stake, state human rights legislation, and the court decisions interpreting it, may provide broader protection than that offered under similar federal laws.
The Common Law
The notion of equal protection or equal treatment is rooted in the Anglo-Saxon common law. When Henry II ascended the throne in 1154, England was divided into political subdivisions consisting of villages, hundreds, shires, and towns. The king, feudal lords, and local assemblies all wielded power to some extent. But there were no effective national executive, legislative, or judicial institutions that could administer laws in a uniform and organized manner. Henry II changed this condition by creating a royal common law, which his officials disseminated throughout the kingdom. Thus, the king's law was made "common" to citizens of the entire realm.
The idea of equality under the law is also rooted in the rule of law and in the principle that no one is above the law, including the king and the members of Parliament. This principle found expression in Bonham's case, 8 Co. 107a, 77 Eng. Rep. 638 (K.B. 1608), in which eminent English jurist Sir Edward Coke wrote that "the common law will … controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void."
In 1761, James Otis, an American colonist, relied on Coke in the writs of assistance case in which he stated that any act of Parliament "against the constitution is void" and that it was the duty of the courts to "pass such acts into disuse" because they contravened "the reason of the common law." In a recent application of this principle, President Richard M. Nixon lost his battle with the rule of law when the Supreme Court forced him to surrender the infamous Watergate tapes against his assertion of executive privilege (United states v. Nixon 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 ).
Courts have also relied on the concept of equal treatment in explaining the common doctrine of stare decisis. When a court has laid down a principle of law in one case, stare decisis requires the court to apply that principle to future cases involving a similar set of facts. Some commentators have suggested that stare decisis serves two policy considerations: continuity and predictability in the law. But this doctrine also promotes equal treatment, federal courts have reasoned, by permitting all similarly situated litigants to obtain the same results under the law.
The American Revolution was sparked by the idea of equality. In 1776, the colonists declared themselves independent of the British Empire, in which the government often acted as if it were above the law. Jefferson and the other revolutionaries announced their steadfast adherence to the rule of law and the idea of human equality. But the idea of equality has always been ambiguous and controversial. U.S. citizens still disagree about whether the Equal Protection Clause of the Fourteenth Amendment guarantees equality of condition, equality of result, or equality of treatment and concern under the law. This disagreement manifests itself in state and federal courthouses and the halls of Congress.
Bailyn, Bernard. 1967. The Ideological Origins of the American Revolution. Cambridge, Mass.: Belknap Press.
Barron, Jerome A., and C. Thomas Dienes. 1999. Constitutional Law in a Nutshell. 4th ed. St. Paul, Minn.: West.
Berman, Harold J. 1983. Law and Revolution. Cambridge, Mass.: Harvard Univ. Press.
Friedman, Lawrence M. 1985. A History of American Law. 2d ed. New York: Simon & Schuster.
Renstrom, Peter G. 1999. Constitutional Rights Sourcebook. Santa Barbara, Calif.: ABC-CLIO.
Rotunda, Ronald D., et al. 1986. Treatise on Constitutional Law: Substance and Procedure. Volume 3. St. Paul, Minn.: West.
Wills, Garry. 1978. Inventing America: Jefferson's Declaration of Independence. New York: Doubleday.
- Constitution of the United States
- Acquired Immune Deficiency Syndrome
- Age Discrimination
- Baker v. Carr
- "Bradwell v. Illinois" (Appendix, Primary Document)
- Capital Punishment
- Civil Rights Acts
- Civil Rights Cases
- Disability Discrimination
- Gay and Lesbian Rights
- Japanese American Evacuation Cases
- Jim Crow Laws
- Ku Klux Klan Act
- Marshall, Thurgood
- Right to Counsel
- School Desegregation
- Voting Rights Act of 1965
- Warren, Earl