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Equal Protection

Fourteenth Amendment

The Equal Protection Clause requires government to treat similarly situated people equally. It prohibits discrimination based on race, sex, and other characteristics, and ensures that laws apply fairly to all.

Overview

Equal Protection is the primary constitutional tool for challenging discrimination. Originally enacted after Civil War to protect freed slaves, it now applies broadly to prevent government discrimination. The level of judicial scrutiny depends on the classification used: race gets strictest review, most other classifications get minimal review.

This breakdown uses the TICRI Constitutional Rights methodology to provide:

  • 📜 Constitutional Text
  • 💭 Plain English Explanation
  • ✅ What IS Protected
  • ❌ What is NOT Protected
  • ⚖️ Key Supreme Court Cases
  • 🔍 Real-World Applications

📜 Constitutional Text

"No State shall... deny to any person within its jurisdiction the equal protection of the laws."

— Fourteenth Amendment, Section 1, U.S. Constitution (1868)

Note: Equal Protection Clause only applies to states. Federal government is bound by equal protection principles through Fifth Amendment Due Process Clause (reverse incorporation from Bolling v. Sharpe).

💭 Plain English Explanation

Government must treat people equally under the law. When government classifies or distinguishes between people, courts examine whether the distinction is justified. Some classifications (race, national origin) are almost never allowed. Others (age, wealth) are allowed if government has any reasonable justification.

Three levels of scrutiny:

Strict Scrutiny (Hardest to Satisfy)

Race, national origin, alienage (sometimes). Government must show compelling interest and narrowly tailored means. Almost always fails.

Intermediate Scrutiny (Middle Level)

Sex, illegitimacy. Government must show important interest and substantially related means. Moderately difficult to satisfy.

Rational Basis (Easiest to Satisfy)

Everything else (age, disability, wealth, sexual orientation). Government only needs legitimate interest and rational relationship. Almost always passes.

✅ What IS Protected (Gets Strict or Heightened Scrutiny)

✓ Race & National Origin (Strict Scrutiny)

Any classification based on race or national origin is presumed unconstitutional. Government must show compelling interest and narrow tailoring. Applies to discrimination against any race (including whites). Affirmative action faces strict scrutiny.

✓ Sex/Gender (Intermediate Scrutiny)

Discrimination based on sex requires "exceedingly persuasive justification." Government must show important objective and substantial relationship between classification and objective. Both intentional discrimination and gender stereotypes are prohibited.

✓ Illegitimacy (Intermediate Scrutiny)

Classifications based on whether parents were married (legitimacy) get intermediate scrutiny. Cannot punish children for parents' conduct. Most illegitimacy classifications struck down.

✓ Fundamental Rights (Strict Scrutiny)

When law discriminates regarding fundamental right (voting, travel, court access), strict scrutiny applies even if classification isn't suspect. Can't deny fundamental rights to disfavored groups without compelling justification.

✓ Alienage - Complex

State discrimination against legal aliens generally gets strict scrutiny. Federal alienage classifications get rational basis (immigration is federal power). Exception: state can require citizenship for "political function" jobs (police, teachers, judges).

❌ What is NOT Protected (Gets Only Rational Basis)

✗ Age

Age discrimination by government gets only rational basis review. Mandatory retirement ages, senior discounts, age-based benefits all constitutional if rationally related to legitimate purpose. Age Discrimination in Employment Act protects private employment, not constitutional protection.

✗ Disability

Rational basis review for disability classifications. Government can distinguish based on disability if rationally related to legitimate interest. Americans with Disabilities Act provides statutory protection beyond Constitution.

✗ Wealth

Wealth is not suspect classification. Government can treat rich and poor differently (tax rates, fees, benefits) with rational basis. Exception: cannot deny fundamental rights (court access, voting) based on inability to pay.

✗ Sexual Orientation

Supreme Court has not declared sexual orientation a suspect classification. Gets rational basis review, though with some "teeth" (laws based solely on animus fail). Obergefell recognized marriage right but didn't establish heightened scrutiny for sexual orientation.

✗ Most Economic & Social Regulations

Ordinary economic regulations get rational basis. Government can classify businesses, set different tax rates, regulate industries differently. As long as there's conceivable rational basis, court upholds law.

⚖️ Key Supreme Court Cases

Brown v. Board of Education (1954)

"Separate But Equal" Unconstitutional — Racial segregation in public schools violates Equal Protection even if facilities are equal. Segregation inherently generates feeling of inferiority. Overruled Plessy v. Ferguson (1896).

Most important Equal Protection case. Ended legal segregation and launched Civil Rights Movement. Recognized that separate is inherently unequal. Applied to all government segregation, not just schools.

Loving v. Virginia (1967)

Interracial Marriage Ban Unconstitutional — Virginia's ban on interracial marriage violated Equal Protection. Racial classifications must be necessary to achieve compelling interest. No such interest here — based solely on racial prejudice.

Established strict scrutiny for racial classifications. "White supremacy" is not legitimate government purpose. Ended bans on interracial marriage in 16 states.

Students for Fair Admissions v. Harvard & UNC (2023)

Affirmative Action in College Admissions Unconstitutional — Race-conscious admissions programs violate Equal Protection. Universities cannot consider race as factor in admissions. Overruled Grutter v. Bollinger's approval of narrow race considerations.

Major shift ending affirmative action in higher education. Court held race-conscious admissions lack sufficient connection to educational benefits and stereotyped students. Schools can still consider applicant's discussion of how race affected their life.

United States v. Virginia (1996)

VMI Gender Exclusion Unconstitutional — Virginia Military Institute's male-only admissions policy violated Equal Protection. Sex classifications require "exceedingly persuasive justification." Generalizations about "typical" men and women insufficient.

Strengthened intermediate scrutiny for sex discrimination. Cannot exclude women from educational opportunities based on stereotypes about capabilities or preferences. Rejected "separate but equal" alternative women's program.

Craig v. Boren (1976)

Intermediate Scrutiny for Sex — Established intermediate scrutiny for sex classifications. Oklahoma law allowing 3.2% beer sales to women at 18 but men at 21 violated Equal Protection. Sex classification must serve important objective and be substantially related.

Created "intermediate scrutiny" tier. First case applying heightened review to discrimination against men. Statistical generalizations about drunk driving insufficient to justify gender line.

Korematsu v. United States (1944)

Japanese Internment Upheld (Now Discredited) — Upheld WWII exclusion and internment of Japanese Americans. Applied strict scrutiny but found military necessity sufficient. Universally condemned; Court has said Korematsu was wrongly decided.

Dark stain on Court's history. First case to articulate strict scrutiny for racial classifications, but then upheld blatant racial discrimination. Explicitly overruled in Trump v. Hawaii (2018) though that was largely symbolic.

Romer v. Evans (1996)

Anti-Gay Amendment Unconstitutional — Colorado amendment prohibiting laws protecting gays and lesbians violated Equal Protection. Law based on animus toward group fails even rational basis review. Cannot make class of persons "unequal to everyone else."

Applied rational basis with "bite." Law motivated solely by animus fails Equal Protection. Important LGBT rights case, though didn't establish heightened scrutiny for sexual orientation.

🔍 Real-World Applications

Affirmative Action After SFFA (2023)

Major Change: Colleges can no longer consider race in admissions decisions. Race-conscious affirmative action programs are unconstitutional under Equal Protection Clause.

Schools can consider applicant's discussion of how race affected their life as part of individualized review, but cannot use race as a plus factor or seek racial diversity directly.

Intentional Discrimination vs. Disparate Impact

Intentional Discrimination: Violates Equal Protection. Must show discriminatory purpose, not just discriminatory effect. Facially neutral law with discriminatory intent is unconstitutional.

Disparate Impact: Law that affects groups differently but lacks discriminatory purpose generally doesn't violate Equal Protection (though may violate statutes like Title VII). Constitution requires discriminatory intent.

Sex Discrimination

Intermediate scrutiny requires "exceedingly persuasive justification." Examples:

  • Cannot exclude women from military academies (VMI)
  • Cannot give husbands automatic preference as estate administrators
  • Cannot set different drinking ages for men and women
  • Cannot provide benefits to widows but not widowers without justification
  • Can have separate restrooms and some sports teams (privacy and competitive fairness)

Voting Rights

Voting is fundamental right. Laws that restrict voting face strict scrutiny. Cannot use poll taxes, literacy tests, or racial gerrymandering. But voter ID laws generally upheld (unless shown to have discriminatory purpose). Partisan gerrymandering is political question outside court review.

School Funding Inequality

Wealth is not suspect class and education is not fundamental right under federal Constitution (San Antonio v. Rodriguez). States can fund schools differently in rich and poor districts without violating Equal Protection. Many state constitutions provide greater protection.

LGBT Rights

Sexual orientation gets rational basis review (not heightened scrutiny). But animus-based laws fail. Obergefell recognized marriage right under Due Process and Equal Protection, but didn't establish sexual orientation as suspect classification. Laws must have legitimate justification beyond mere disapproval.

Key Takeaways

  • ✓Equal Protection requires government to treat similarly situated people equally
  • ✓Three tiers: Strict scrutiny (race, national origin), Intermediate (sex, illegitimacy), Rational basis (everything else)
  • ✓Racial classifications almost never pass strict scrutiny — includes affirmative action (as of 2023)
  • ✓Sex discrimination requires "exceedingly persuasive justification" (intermediate scrutiny)
  • ✓Age, disability, wealth, sexual orientation get only rational basis review
  • ✓Must show discriminatory intent/purpose, not just discriminatory impact