Equal Protection Rights Legally Provided by the Constitution

Section 1 of the Fourteenth Amendment prohibits the government from denying the equal protection of the laws to any person. While the Fourteenth Amendment applies only to the states, this principle has been "reverse incorporated" into the Fifth Amendment, which contains a Due Process Clause. Therefore, it also applies to actions by the federal government.

The Equal Protection Clause initially was intended to prevent government discrimination against African-Americans in the wake of the Civil War. Perhaps its most famous application occurred in the 1954 Supreme Court decision in Brown v. Board of Education, which struck down school segregation. However, the equal protection doctrine has expanded far more broadly over time. It has been interpreted to prohibit race discrimination against any minority group, rather than just African-Americans, and it applies to discrimination against groups defined by traits other than race. Additional classifications subject to enhanced review include:

  • Gender
  • National origin
  • Illegitimacy
  • Alienage (lack of citizenship)
  • Religion
  • Possibly sexual orientation, although the Court has not directly addressed this issue

Characteristics that are not considered suspect classifications for equal protection purposes include age and poverty.

Equal Protection and Affirmative Action

Scholars are divided on whether the equal protection doctrine permits affirmative action. This involves giving certain minority groups advantages in processes controlled by the government, such as competitions for government contracts or admission to public universities. As challenges to affirmative action have grown, some public entities have replaced these programs with race-neutral programs that are based on characteristics that tend to correlate with race. However, the Supreme Court has indicated that these proxies for racial classifications stand on equally uncertain constitutional ground.

Standards of Review in Equal Protection Cases

Courts may apply three standards of review in equal protection cases. First, strict scrutiny applies to classifications based on race, national origin, religion, and alienage. It also applies to certain classifications that impose burdens on fundamental rights, including marriage, procreation, voting, moving between states, and access to courts. Strict scrutiny requires the government to identify a compelling government interest and prove that the law is necessary to serve that interest. The law must be narrowly tailored and use the least restrictive means to further that interest. This is a challenging standard to meet, and a law usually does not survive strict scrutiny.

Intermediate scrutiny applies to the quasi-suspect classifications of gender and illegitimacy. Under intermediate scrutiny, the government needs to identify an important (rather than compelling) government interest and prove that the law is substantially related (rather than necessary) to serving that interest. A law may or may not survive this standard of review.

The Most Famous Footnote in Constitutional Law?

In Carolene Products v. US, the Supreme Court upheld an economic regulation under rational basis review. However, footnote 4 in the opinion may have planted the seed for elevated standards of review in other types of cases. The footnote suggested greater scrutiny for laws that appear to violate the Bill of Rights, laws restricting political processes that are used to change laws, and laws that single out religious, national, or racial minorities.

Rational basis review applies to all other classifications, which are not viewed as suspect. In these situations, the law will be upheld as long as the classification is rationally related to a legitimate government interest. A law generally will survive a rational basis challenge, in which the burden is on the challenger rather than the government. However, the Supreme Court appears to apply a "rational basis-plus" standard to laws that seem to discriminate against certain groups, such as the LGBTQ+ community, children of undocumented foreign nationals, and people with mental disabilities. A "rational basis-plus" standard may involve greater attention to the legitimacy and importance of the government interest.

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