Equal Protection

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

Amendment XIV, Section 1

The Equal Protection Clause is one of the most litigated and significant provisions in contemporary constitutional law. The meaning of the clause is bound up with the entire drama of the Civil War and Reconstruction and, in particular, with slavery and emancipation. Thus the Equal Protection Clause can be understood only as an organic part of the Fourteenth Amendment and in the broader context of all the Reconstruction amendments.

Considered textually, the Privileges or Immunities Clause, the Equal Protection Clause, and the Due Process Clause of the Fourteenth Amendment can be read to form a coherent triad. A state's legislature could not deny to any citizen within its jurisdiction any privilege or immunity (however defined). Once a law was validly passed, the state or its agents could not arbitrarily enforce it against any person within the state's jurisdiction without violating the Equal Protection Clause. Finally, every person accused of violating a law would enjoy the full panoply of procedural rights before the courts of the state. However, early Court involvement, such as in the Slaughter-House Cases (1873), as well as the ambiguity of much of the congressional debates, has led to debate and disagreement as to the original understanding of the three clauses.

Debate on the original understanding of the Equal Protection Clause became intense in modern times after the Supreme Court ordered briefing and reargument on the question in Brown v. Board of Education (1954), the school desegregation case. Scholarly debate on the original intention of the Equal Protection Clause and, more broadly, on Section 1 of the Fourteenth Amendment, continues to the present day. Controversy centers on two primary questions. The first is how far, or in relationship to what rights, did the framers intend the command of equality to apply? In other words, equal as to what? The second is what does it mean to treat persons equally? In other words, what is equal treatment? Although these two questions have been answered by the Court since Brown, the original intention of the framers remains subject to ongoing dispute.

The scope of equal protection today is as broad as governmental action under the State Action doctrine. Thus in modern constitutional law, the command to treat persons equally extends to all actions by the government.

Most commentators agree, however, that the intended scope of the Equal Protection Clause was narrower. The framers were focused primarily on the status of the freed slaves, and thus the command of equal protection was debated primarily in racial terms. Congress had enacted the Civil Rights Act of 1866 largely in response to perceived southern oppression of the freed slaves, particularly in the form of "Black Codes" enacted in the former Confederate states. John A. Bingham, the primary author of Section 1 of the Fourteenth Amendment, did not believe that Congress had the authority to enact the Civil Rights Act of 1866, and he therefore intended to provide congressional authority for that enactment by constitutional amendment. When Bingham's version of Section 1 emerged from committee for consideration by the full Congress, it was received primarily as a means of legitimizing the 1866 Civil Rights Act. Thus, at a minimum, the framers intended that the command of equal protection apply to the rights protected by the Civil Rights Act of 1866, which provided for the "same right":

To make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property...and shall be subject to like punishment, pains and penalties, and to none other....

The methodology of the first section of the Civil Rights Act was to define national citizenship and to declare that all citizens, "of every race and color" should have the same benefit of the listed rights "as is enjoyed by white citizens." The language of Section 1 of the Fourteenth Amendment, by contrast, can be read to distinguish between citizenship rights protected by the Privileges or Immunities Clause and personhood rights protected by the Due Process and Equal Protection Clauses. Once the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, however, the Equal Protection Clause became the primary bulwark supporting the constitutionality of the Civil Rights Act and providing for the enforcement of its listed rights.

The framers' jurisprudence tended to lump together rights flowing from citizenship and personhood under the rubric of "civil rights," and to speak of them in religious or natural law and natural rights terms. In Section 1 of the Fourteenth Amendment, the framers attempted to create a legal bridge between their understanding of the Declaration of Independence, with its grand declarations of equality and rights endowed by a Creator God, and constitutional jurisprudence. However, the framers also prized federalism—although not in the absolutist sense of the Southern secessionists. Antislavery activists themselves had at times relied on state authority to resist federal policies protective of slavery and so shared that era's common mistrust of centralized authority. The Fourteenth Amendment's compromise between federal enforcement of civil rights and the maintenance of significant state authority was to amend the Constitution to provide clear warrant for the Civil Rights Act, but at the same time to provide additional federal protection for those fundamental rights flowing from citizenship and personhood.

The rhetoric of the time distinguished civil equality from two other kinds of possible equality: political and social. The framers of the Fourteenth Amendment chose not to include political rights (such as the right to vote, which the Fifteenth Amendment would later address) and social rights within the protections of the Fourteenth Amendment. The Fourteenth Amendment, including its then more prominent sections regarding representation and the political exclusion of certain former Confederates, was part of the Republican Party's Reconstruction program during the critical 1866 election. The program was popular because of its perceived moderation by Northern opinion of the time, which was generally negative or ambivalent in regard to political and social equality for African-Americans. After achieving political success in the 1866 election, Republicans became bolder, enacting the Fifteenth Amendment, explicitly protecting the right to vote. However, the very passage of the Fifteenth Amendment indicates that voting rights were not protected by the Fourteenth Amendment.

The question of whether Brown v. Board of Education, invalidating segregated public education, was consonant with the framers' original intent has been much debated. Some scholars view the provision and integration of education as local, social, or political in nature, and hence as beyond the original scope of the Fourteenth Amendment. Others would point to post-1866 Republican efforts to desegregate schools as evidence that Brown is a plausible interpretation of the framers' intent. Antislavery rhetoric had been critical of Southern laws that outlawed basic education for slaves, and thus provision of education for the freed slaves would have been important to the framers. Arguably, then, education was neither a political nor social right, but rather was related to a person's right to the pursuit of happiness, or was a right equipping citizens for their civic responsibilities. In any event, by the time segregation swept the South, it was part of the Jim Crow program to reduce blacks to a status not unlike that imposed by the "Black Codes," which the Fourteenth Amendment was clearly intended to efface.

Brown posed the question of whether a doctrine of "separate but equal" was compatible with the Equal Protection Clause, as had been established by Plessy v. Ferguson (1896). The records of the Thirty-ninth Congress, which proposed the Fourteenth Amendment, provide little guidance on this question. The other parts of the Fourteenth Amendment received far more discussion within the Congress than did Section 1. Once John A. Bingham's version of the Fourteenth Amendment emerged from committee, it was treated primarily as providing constitutional authority for the Civil Rights Act of 1866, and it received relatively little comment. Nonetheless, in light of the concerns for the freed slaves that animated the framers of the Fourteenth Amendment, it is reasonable to believe that the framers would generally have presumed "equal treatment" to mean the same, rather than segregated, treatment. The framers would likely have accorded the system of racial oppression found in the Jim Crow laws the same hostility they had demonstrated toward the "Black Codes" of their own time, despite any legal differences between these methodologies of oppression.

The primary intent of the Equal Protection Clause was to require states to provide the same treatment for whites and freed slaves in regard to the class of personhood and citizenship rights enumerated in the Civil Rights Act of 1866. The clause is not limited to racial classifications, in large part because the framers were also concerned about white Union loyalists, who also suffered discriminatory treatment in the South. In addition, this general language reflected antislavery Republican jurisprudence, which drew links between the Declaration of Independence, natural law and natural rights, and constitutional jurisprudence. From an originalist constitutional perspective, application of the Equal Protection Clause to rights or issues beyond the scope of the 1866 Civil Rights Act can rest upon the broader principle enacted by the framers—their jurisprudence of equality linking the Declaration of Independence to the Constitution.

The Supreme Court's acceptance of white supremacist segregation in the period from 1896 to 1954 would not have pleased the framers. Even if the framers had viewed public accommodations and education as local or social rights not directly protected by the Equal Protection Clause, their sense of racial justice would have opposed the systematic, legally enforced racial caste system that emerged in the 1890s. In fact in the so-called Ku Klux Klan Acts (1871), Congress did attempt to thwart the violent racism that was the harbinger of Jim Crow.

Although the Equal Protection Clause may not have been intended to command integration, it also was not intended to countenance legally enforced segregation. In addition, the ultimate failure of the legal system to protect African-Americans against terrorist acts that enforced white supremacy was precisely the kind of failure that the Equal Protection Clause was designed to prevent. The framers undoubtedly would have recognized that government and private institutions had coalesced to enforce a racial caste system that oppressed African-Americans in a manner inconsistent with the fundamental principle of civil equality. As Justice John M. Harlan famously declared in his dissent in Plessy v. Ferguson, "In 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."

Generations of experience with segregation demonstrated that a partial permission of governmental racial classifications was an ineffective means of protecting the core principles and rights enacted in Section 1 of the Fourteenth Amendment. From this perspective, the Supreme Court's expansion of the Equal Protection Clause to all governmental action, without regard to distinctions among civil, political, and social rights, as well as the Supreme Court's overturning of "separate but equal" jurisprudence, was a realistic application of the core principles of the Equal Protection Clause. Governments that systematically demeaned and excluded African-Americans proved unable and unwilling to protect even the limited equality directly protected by the Equal Protection Clause.

Although its history demonstrates a primary concern with the protection of the freed slaves and African-Americans, the language of the Equal Protection Clause is general. The framers were also concerned with the protection of white Union loyalists in the South, and they thus clearly understood that the clause would not be limited to the protections of the freed slaves. The general language of the Fourteenth Amendment reflects the framers' commitment to constitutionalizing their natural-law understanding that all human beings are created equal as to their fundamental rights of life, liberty, and property. Thus it was inevitable that the question should arise as to how the clause would be applied to nonracial classifications.

All laws classify, and thus there are countless classifications in American law. All laws make distinctions, but not all laws violate equal protection. A law that limited driving to those sixteen years of age and older would not violate equal protection even though it treated fifteen-year-olds differently from sixteen-year-olds. Close judicial review of all classifications to ensure "equal protection of the laws" is a practical impossibility. Therefore the Supreme Court has had to find doctrinal means of managing the task of judicial review under the Equal Protection Clause. Although the clause protects all persons, the Court, as a practical matter, cannot give close scrutiny to all classifications that governmental action may create among persons.

During the era of "separate but equal" jurisprudence, the primary application of the clause to race was severely, although not entirely, eliminated. At the same time the Court had found the clause applicable to little else beyond race. The clause was not sufficient to stop the internment of Japanese-Americans during World War II, despite the Court precedents making the clause applicable to the protection of all races, and not to African-Americans only. With the clause generally ineffective as to racial matters and applicable to little else, the Equal Protection Clause became, in Justice Oliver Wendall Holmes's words, the "usual last resort of constitutional arguments...." Buck v. Bell (1927).

After the Court resurrected the Equal Protection Clause in regard to racial classifications, it subsequently developed a two-tiered system of review. All classifications based on race were subjected to "strict judicial review," and they were thus subjected to a means-end test: the classification must be narrowly tailored to effectuate a compelling governmental interest. The Court determined which governmental interests (ends) were significant enough to be "compelling." As a practical matter, in many cases the government could at least claim to be implementing an end or purpose deemed compelling under the Court's precedents. Therefore the heart of strict scrutiny often rests in the means test.

Means-end testing involves essentially two questions: (1) Does the governmental action work, meaning does the governmental action actually serve the claimed interest? (2) If it does work, is there an alternative and less "suspect" (i.e., nonracial) classification that would work approximately as well, making use of the racial classification unnecessary to achievement of this goal? Under strict scrutiny, means-end testing involves a kind of public policy "second-guessing" by the legislative branch. By contrast, nonsuspect classifications are presumptively constitutional, and they are therefore reviewed under the very lenient rational basis test, which asks whether the classification is rationally related to a legitimate government interest. Under rational basis review there is generally little second-guessing as to whether the law works, and the analysis of alternatives is irrelevant. The burden is on the complaining party to show that the only purpose of the legislation was invidiously discriminatory. Rational basis review has understandably developed into a virtual rubber stamp.

The group of classifications subject to strict scrutiny is very limited: race and its corollaries, such as national origin or ethnic group; and legal alienage, except where the classification is either (1) created by the federal government (which has plenary control over immigration) or (2) excludes aliens from political functions "intimately related to the process of democratic self-government," such as serving as police and probation officers or public school teachers. Alienage classifications operating within the two exceptions are generally reviewed under the lenient rational basis test.

Beginning in the 1970s the Court developed a third, intermediary standard of review for two classifications: sex and legitimacy (the distinction between marital and nonmarital children). The test for intermediary scrutiny asks whether the law is substantially related to an important government interest. As to gender, a number of decisions have emphasized that there must be "an exceedingly persuasive justification" for any sex classification. United States v. Virginia (1996). Although some interpret this language as implying a creep toward strict scrutiny for sex classifications, officially gender remains subject to intermediary scrutiny.

The Supreme Court has thus far refused to extend heightened scrutiny (strict or intermediary scrutiny) to any other classifications, even though some, such as age, disability, and sexual orientation, are frequently included in antidiscrimination legislation. The Supreme Court's tendency to occasionally invalidate laws employing sensitive classifications, purportedly under the rational basis test, as in City of Cleburne v. Cleburne Living Center, Inc. (1985) (mental retardation) and Romer v. Evans (1996) (sexual orientation), only underscores the Court's reluctance to officially expand the classifications subject to heightened scrutiny. In fact a majority of the Court thus far prefers to rest their protection of same-sex relationships on a substantive view of due process rather than equal protection. Lawrence v. Texas (2003).

The methodology by which the Court determines which classifications receive heightened scrutiny, beyond that of race, is unclear. Commentators have invoked the classification of "discrete and insular minorities" from the famous footnote four of United States v. Carolene Products Co. (1938), but the relevance of that footnote in modern times is hardly clear. Women, for example, are neither minorities nor insular. Justices and commentators have sometimes compared the historical discrimination experienced by African-Americans to that experienced by women, the mentally retarded, and those with a same-gender sexual orientation, but it is unclear whether there is a clear scale for measuring tragic histories. In addition, once a classification is made suspect, under current precedents the Court will protect members of the historically favored, as well as historically disfavored, group. For example, the equal protection cases protect "sex," not the female sex. Thus, the Court has invalidated a law that limited a nursing school to women, Mississippi University for Women v. Hogan (1982), and a law that allowed women, but not men, to buy alcohol at age 18. Craig v. Boren (1976). Given these difficulties, the Court thus far has not developed a single methodology for determining the critical question of which classifications receive heightened scrutiny, nor for choosing between strict and intermediary scrutiny.

The question of affirmative action has spawned much litigation. Under current precedents, all legislative racial classifications are evaluated under strict scrutiny, even if they purport to be positive affirmative action programs favoring racial minorities. Although the primary impetus behind the Fourteenth Amendment (and its Equal Protection Clause) was to protect African-Americans, the framers of the amendment phrased the protection in general terms, and the courts have applied it in that fashion. Thus today, even classifications favoring African-Americans are presumptively unconstitutional absent of sufficiently weighty reason. The courts have held that the protection of all races against discrimination effectuates the broader original purpose of the Equal Protection Clause, which constitutionalized the core concept of personal equality as described in the Declaration of Independence. Thus, the apparent tension between active efforts to promote the progress of racial minority groups and the promise of personal equality for each individual, regardless of race, have been resolved in favor of the latter.

The Supreme Court has recently upheld some forms of race-based affirmative action despite the application of strict scrutiny. Thus the Supreme Court has said that racially conscious acts by legislatures, courts, or other state actors will meet strict scrutiny if the racially conscious act rectifies, in a narrowly tailored fashion, a previous governmental violation of equal protection, or—more controversially—if it furthers the compelling interest of student body racial diversity in higher education by including race as a positive element in an applicant's profile. Grutter v. Bollinger (2003), Gratz v. Bollinger (2003). Given the close divisions on the Court it is possible that, as new Justices are appointed, the Court will revisit the issue of whether to apply a more lenient standard of review to affirmative action programs assisting racial minorities.

The Equal Protection Clause textually limits only state government, hence it is literally inapplicable to the federal government. However, since Bolling v. Sharpe (1954), the Court has developed the doctrine that the Due Process Clause of the Fifth Amendment has an equal protection component with equivalent requirements to the Equal Protection Clause of the Fourteenth Amendment. Equal Protection doctrine (if not literally the Equal Protection Clause) has thus become applicable to all governmental action, whether state, local, or federal.

David Smolin
Harwell G. Davis Professor of Constitutional Law
Director, Center for Biotechnology, Law and Ethics
Cumberland School of Law, Samford University