CHAPTER 6

Equal Protection: Ordinary, “Suspect,” and “Quasi-Suspect” Classifications

§6.1 INTRODUCTION AND OVERVIEW

The Constitution prohibits the state and federal governments from denying people the equal protection of the laws. Section 1 of the Fourteenth Amendment provides: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” Though nothing in the Constitution’s text imposes a similar restriction on the federal government, the Court has construed the Fifth Amendment Due Process Clause as “contain[ing] an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups.” Washington v. Davis, 426 U.S. 229, 239 (1976). Under most circumstances, the protections afforded by these Amendments are coextensive. But see Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976) (variable standards in the context of discrimination against aliens). In this chapter, the term Equal Protection Clause will be used to include the equal protection guaranties of both the Fifth and the Fourteenth Amendments unless otherwise indicated.

The Equal Protection Clause might seem to bar the government from engaging in any type of discriminatory conduct. Yet if this were literally true, virtually no laws would be constitutional. Every law classifies by imposing burdens or conferring benefits on a selective basis, singling out some people or activities for treatment different from that accorded to others. A police officer who enforces a speed limit law pulls fast drivers out of the stream of traffic and allows other drivers to proceed unimpeded. A law regulating child labor treats employers who hire 10-year-olds differently from those who hire 25-year-olds. Each of these laws would be unconstitutional if the equal protection guarantee prohibited all discrimination on the part of government.

The Equal Protection Clause has never been interpreted as outlawing all forms of discrimination. Instead, the clause prohibits government from engaging in arbitrary or invidious discrimination—i.e., from employing classifications that cannot be justified on the basis of any legitimate governmental interest and that are perhaps adopted merely for the sake of harming a particular group. For the government to treat people differently who are similarly situated, or to treat people the same who are not similarly situated, offends fundamental standards of fairness. Such arbitrary action on the part of government officials suggests that they are either acting capriciously or misusing their authority to reward friends and/or punish enemies. Whichever the case, governmental conduct that draws arbitrary distinctions between people violates the democratic principle that all persons stand equal before the law.

The question that the courts face in seeking to implement the Equal Protection Clause is how to determine whether a classification is so arbitrary as to be unconstitutional. How convincing an explanation must the defender of a discriminatory law offer to persuade a judge that the classification is relevant to a legitimate governmental interest?

Example 6-A

A state law provides that to work as a carpenter, one must have a high school diploma and weigh at least 160 pounds. By classifying on the basis of education and weight, this law discriminates against those who lack a high school education and those who weigh less than 160 pounds. Shortly after the law took effect, Sheila, who is black, was fired from her carpenter’s job because she weighs only 125 pounds and never graduated from high school. Can Sheila successfully challenge the law on the ground that it violates the Equal Protection Clause?