CHAPTER 7

Equal Protection: Fundamental Rights

§7.1 INTRODUCTION AND OVERVIEW

In the previous chapter, we examined application of the Equal Protection Clause in situations that call for mere rational basis review and in situations where the basis of classification was “suspect,” “quasi-suspect,” or otherwise such as to call for some form of heightened scrutiny. We turn now to an examination of the Equal Protection Clause in settings where the basis of the classification is unproblematic, but where the law discriminates in such a way as to impinge on a fundamental constitutional right. After exploring this fundamental-rights branch of the equal protection doctrine, this chapter will conclude by looking briefly at an alternative approach to equal protection that Justice Thurgood Marshall advocated as a replacement for the Court’s three-tier model that we have been discussing.

§7.2 EQUAL PROTECTION AND FUNDAMENTAL RIGHTS

Laws that classify in ways that infringe on the exercise of a fundamental constitutional right will be upheld only if they survive the same strict scrutiny test that is applied to suspect classifications. In other words, the defender of the law must demonstrate that the discrimination is narrowly tailored to serve a compelling governmental interest. See §6.4.2.

Example 7-A

Roger is 18 years of age and the father of a 3-year-old girl who was born out of wedlock. Two years ago Roger was ordered to pay child support in the amount of $200 per month. Because he has been unemployed, Roger has not paid child support and owes an arrearage of almost $5,000. Roger recently applied for a marriage license. The license was denied under a state law that prohibits anyone from marrying who has not met his or her child-support obligations. Roger sued, alleging that the license denial violates his rights under the Equal Protection Clause. How should the court rule?

Explanation

The right to marry is a fundamental constitutional liberty. Loving v. Virginia, 388 U.S. 1 (1967). In this case, the state has created a classification that allows some people to marry, while denying that right to others. The classifying trait—payment of child support—is not one that calls for heightened scrutiny. However, because the law severely impairs a person’s fundamental constitutional right to marry, the law is subject to strict scrutiny.

The state might argue that its discrimination against those who fail to support their children serves the compelling interest of assuring that minor children are cared for. Even if this is a sufficiently compelling interest to justify interference with the right to marry, the state must show that the marriage ban is narrowly tailored to that goal in the sense that it is neither overinclusive nor underinclusive. Here, the ban is overinclusive because it applies even when preventing a marriage will in no way further the state’s child-support goal. Whether or not Roger gets married, it is unlikely he can pay child support. The state thus gains nothing by impairing Roger’s constitutional rights. The law, therefore, violates the Equal Protection Clause because it creates a classification that burdens the fundamental right to marry without being narrowly tailored to the state’s interest in seeing that children are adequately supported. See Zablocki v. Redhail, 434 U.S. 374 (1978).