EQUAL PROTECTION

a. Strict scrutiny: The principal way in which the Clause gained new vitality in the Warren years was by means of a broadened view of when a statutory classification should be subjected to “strict scrutiny,” i.e., a scrutiny more demanding than the “mere-rationality” test generally applied in earlier years. Whereas pre-Warren Courts applied strict scrutiny only to statutes classifying on the grounds of race or national origin, the Warren Court was willing to impose strict scrutiny wherever either the classification was a “suspect” one (because it discriminated against a politically powerless or unpopular minority) or that classification had an impact on a “fundamental right” or interest. Once strict scrutiny was applied to a particular law, the law would be upheld only if it was necessary to achieve a compelling governmental interest.

b. Suspect classification: In actual fact, the Warren Court found only race and national origin to be suspect classifications. But there were hints that other classifications might also be subjected to some sort of heightened review (e.g., illegitimacy). Sullivan & Gunther, p. 642.

c. “Fundamental rights”: The real change made by the Warren Court was in the development of the “fundamental rights” branch of strict scrutiny. If the Court concluded that a statute had a material impact on a fundamental right or interest, it subjected the statute to strict scrutiny, even though the classification itself was not “suspect.” The grounds by which the Warren Court determined that an interest was “fundamental” were never quite clear; the actual list of such fundamental rights seemed to be restricted principally to the areas of voting, criminal appeals and interstate travel. Sullivan & Gunther, p. 642.

4. Post-Warren Court: The Court in the post-Warren years has not made wholesale cut-backs in the Warren equal protection approach. But the present Court has declined to expand the Warren doctrine in the ways that Warren-era opinions suggested might ultimately evolve. For instance, neither the list of classifications deemed “suspect” nor the list of fundamental rights has been materially broadened.

a. Middle-level scrutiny: The most interesting development during the Burger/Rehnquist/Roberts years has been the emergence of what is sometimes called “middle-level” or “intermediate-level” scrutiny. Most clearly in the area of gender-based classifications, but also probably in the areas of illegitimacy and alienage classifications, statutes are not subjected to strict scrutiny, but are given a scrutiny more rigorous than the extreme deference with which general economic and social-welfare classifications are treated. See, e.g., Craig v. Boren, discussed infra, p. 340.

b. Lowest level has some “bite”: Also, occasionally, even the so-called “mere-rationality” or lowest-level of review has some bite under the Burger/Rehnquist/Roberts Court, as it almost never did in previous Courts. Thus a statute will occasionally be found to be so completely lacking in rationality that, even when viewed under a mere-rationality standard, it violates equal protection. See, e.g., U.S. v. Windsor (apparently using some form of mere-rationality equal protection review to strike down Congress’s refusal to recognize state-sanctioned same-sex marriages), infra, p. 373.