Chapter 10

EQUAL PROTECTION

The Equal Protection Clause is part of the Fourteenth Amendment. It provides that “no state shall make or enforce any law which shall … deny to any person within its jurisdiction equal protection of the laws.” Here are the key concepts concerning equal protection:

•     Classifications: The Clause imposes a general restraint on the governmental use of classifications, not just classifications based on race but also those based on sex, alienage, illegitimacy, wealth, or any other characteristic.
•     Federal government: The direct text of the Clause applies only to state governments. But the federal government is also bound by the same rules of equal protection — the Fifth Amendment’s Due Process Clause is interpreted to bar the federal government from making any classification that would be a violation of the Equal Protection Clause if done by a state.
•     Government action only: The Equal Protection Clause (and the Fifth Amendment’s Due Process Clause) apply only to government action, not to action by private citizens. This is the requirement of “state action.“
•     “As applied” vs. “facial”: There are two different types of attacks a plaintiff may make on a classification:
  •     Facial: If P attacks a classification that is clearly written into the statute or regulation, he is saying that the statute or regulation violates equal protection “on its face.“
  •     “As applied”: If P’s claim is that the statute/regulation does not make a classification on its face, but is being administered in a purposefully discriminatory way, then he is claiming that the statute/regulation is a violation of equal protection “as applied.“
• What the Clause guarantees: The Clause in essence guarantees that people who are similarly situated will be treated similarly.

• Three levels of review: There are three levels of review that are used in judging whether governmental classifications violate the Equal Protection Clause:
  • Strict scrutiny: At one end of the spectrum, the Court gives “strict scrutiny” to any statute that is based on a “suspect classification” or that impairs a “fundamental right.” Where strict scrutiny is invoked, the classification will be upheld only if it is necessary to promote a compelling governmental interest. The three suspect classes are race, national origin and (for some purposes) alienage. The rights that are “fundamental” are principally the right to vote, the right to have access to the courts, and the right to migrate interstate.
  • Middle-level review: In a few situations, the Court uses a middle level of review, less demanding than “strict scrutiny.” This level is used for “semi-suspect” classifications, i.e., those based on gender and illegitimacy. Under mid-level review, the means chosen by the legislature (i.e., the classification) must be substantially related to an important governmental objective.