A guarantee of equal protection of the laws was contained in every draft leading up to the final version of section 1 of the Fourteenth Amendment.1294 Important to its sponsors was the desire to provide a firm constitutional basis for already-enacted civil rights legislation,1295 and, by amending the Constitution, to place repeal beyond the accomplishment of a simple majority in a future Congress.1296 No doubt there were conflicting interpretations of the phrase "equal protection" among sponsors and supporters and the legislative history does little to clarify whether any sort of consensus was accomplished and if so what it was.1297 While the Court early recognized that African Americans were the primary intended beneficiaries of the protections thus adopted,1298 the spare language was majestically unconfined to so limited a class or to so limited a purpose. Thus, as will be seen, the equal protection standard came to be applicable to all classifications by legislative and other official bodies, though not with much initial success,1299 until now the equal protection clause in the fields of civil rights and fundamental liberties looms large as a constitutional text affording the federal and state courts extensive powers of review with regard to differential treatment of persons and classes.
1292 Hillsborough v. Cromwell, 326 U.S. 620 (1946).
1293 Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949); Hanover Ins. Co. v. Harding, 272 U.S. 494 (1926). See also Philadelphia Fire Ass'n v. New York, 119 U.S. 110 (1886).
1294 The story is recounted in J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956). See also JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION (B. Kendrick, ed. 1914). The floor debates are collected in 1 STATUTORY HISTORY OF THE UNITED STATES—CIVIL RIGHTS 181 (B. Schwartz, ed. 1970).
1295 Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now in part 42 U.S.C. §§ 1981, 1982. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-37 (1968).
1296 As in fact much of the legislation which survived challenge in the courts was repealed in 1894 and 1909. 28 Stat. 36; 35 Stat. 1088. See R. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 45-46 (1947).
1297 TENBROEK, EQUAL UNDER LAW (rev. ed. 1965); Frank & Munro, The Original Understanding of 'Equal Protection of the Laws', 50 COLUM. L. REV. 131 (1950); Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955); and see the essays collected in H. GRAHAM, EVERYMAN'S CONSTITUTION—HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE "CONSPIRACY THEORY", AND AMERICAN CONSTITUTIONALISM (1968). In calling for reargument in Brown v. Board of Education, 345 U.S. 972 (1952), the Court asked for and received extensive analysis of the legislative history of the Amendment with no conclusive results. Brown v. Board of Education, 347 U.S. 483, 489-90 (1954).
1298 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873).
1299 In Buck v. Bell, 274 U.S. 200, 208 (1927), Justice Holmes characterized the equal protection clause as "the last resort of constitutional arguments."
The Traditional Standard: Restrained Review.—The traditional standard of review of equal protection challenges of classifications developed largely though not entirely in the context of economic regulation.1300 It is still most validly applied there, although it appears in many other contexts as well,1301 including so-called “class-of-one” challenges.62 A more active review has been developed for classifications based on a "suspect" indicium or affecting a "fundamental" interest.
"The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions." Justice Frankfurter once wrote. "They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same."1302 The mere fact of classification will not void legislation,1303 then, because in the exercise of its powers a legislature has considerable discretion in recognizing the differences between and among persons and situations.1304 "Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment."1305 Or, more succinctly, "statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution."1306
1300 See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discrimination against Chinese on the West Coast).
1301 Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide prohibition does not violate Equal Protection Clause by distinguishing between terminally ill patients on life-support systems who are allowed to direct the removal of such systems and patients who are not on life support systems and are not allowed to hasten death by self-administering prescribed drugs).
62 The Supreme Court has recognized successful equal protection claims brought by a class-of-one, where a plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for that difference. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (village’s demand for an easement as a condition of connecting the plaintiff’s property to the municipal water supply was irrational and wholly arbitrary). However, the class-of-one theory, which applies with respect to legislative and regulatory action, does not apply in the public employment context. Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146, 2149 (2008) (allegation that plaintiff was fired not because she was a member of an identified class but simply for “arbitrary, vindictive, and malicious reasons” does not state an equal protection claim). In Engquist, the Court noted that “the government as employer indeed has far broader powers than does the government as sovereign,” id. at 2151 (quoting Waters v. Churchill, 511 U.S. 661, 671 (1994)), and that it is a “common-sense realization” that government offices could not function if every employment decision became a constitutional matter. Id. at 2151, 2156.
1302 Tigner v. Texas, 310 U.S. 141, 147 (1980).
1303 Atchison, T. & S.F.R.R. v. Matthews, 174 U.S. 96, 106 (1899). See also from the same period, Orient Ins. Co. v. Daggs, 172 U.S. 557 (1869); Bachtel v. Wilson, 204 U.S. 36 (1907); Watson v. Maryland, 218 U.S. 173 (1910), and later cases. Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552 (1947); Goesaert v. Cleary, 335 U.S. 464 (1948); McGowan v. Maryland, 366 U.S. 420 (1961); Schilb v. Kuebel, 404 U.S. 357 (1971); Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980); Schweiker v. Wilson, 450 U.S. 221 (1981).
1304 Barrett v. Indiana, 229 U.S. 26 (1913).
1305 Barbier v. Connolly, 113 U.S. 27, 32 (1885).
How then is the line between permissible and invidious classification to be determined? In Lindsley v. Natural Carbonic Gas Co.,1307 the Court summarized one version of the rules still prevailing. "1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Especially because of the emphasis upon the necessity for total arbitrariness, utter irrationality, and the fact that the Court will strain to conceive of a set of facts that will justify the classification, the test is extremely lenient and, assuming the existence of a constitutionally permissible goal, no classification will ever be upset. But, contemporaneously with this test, the Court also pronounced another lenient standard which did leave to the courts a judgmental role. In this test, "the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."1308 Use of the latter standard did in fact result in some invalidations.1309
1306 Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955).
1307 220 U.S. 61, 78-79 (1911), quoted in full in Morey v. Doud, 354 U.S. 457, 463-64 (1957). Classifications which are purposefully discriminatory fall before the equal protection clause without more. E.g., Barbier v. Connolly, 113 U.S. 27, 30 (1885); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Cf. New York City Transit Auth. v. Beazer, 440 U.S. 568, 593 n.40 (1979). Explicit in all the formulations is that a legislature must have had a permissible purpose, a requirement which is seldom failed, given the leniency of judicial review. But see Zobel v. Williams, 457 U.S. 55, 63-64 (1982), and id. at 65 (Justice Brennan concurring).
1308 F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). See also Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573 (1910).
1309 E.g., F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920); Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935); Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936).
But then, coincident with the demise of substantive due process in the area of economic regulation,1310 the Court reverted to the former standard, deferring to the legislative judgment on questions of economics and related matters; even when an impermissible purpose could have been attributed to the classifiers it was usually possible to conceive of a reason that would justify the classification.1311 Strengthening the deference was the recognition of discretion in the legislature not to try to deal with an evil or a class of evils all within the scope of one enactment but to approach the problem piecemeal, to learn from experience, and to ameliorate the harmful results of two evils differently, resulting in permissible over- and under-inclusive classifications.1312
In recent years, the Court has been remarkably inconsistent in setting forth the standard which it is using, and the results have reflected this. It has upheld economic classifications that suggested impermissible intention to discriminate, reciting at length the Lindsley standard, complete with the conceiving-of-a-basis and the one-step-at-a-time rationale,1313 and it has applied this relaxed standard to social welfare regulations.1314 In other cases, it has utilized the Royster Guano standard and has looked to the actual goal articulated by the legislature in determining whether the classification had a reasonable relationship to that goal,1315 although it has usually ended up upholding the classification. Finally, purportedly applying the rational basis test, the Court has invalidated some classifications in the areas traditionally most subject to total deference.1316
1310 In Nebbia v. New York, 291 U.S. 502, 537 (1934), speaking of the limits of the due process clause, the Court observed that "in the absence of other constitutional restrictions, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare."
1311 E.g., Tigner v. Texas, 310 U.S. 141 (1940); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552 (1947); Goesaert v. Cleary, 335 U.S. 464 (1948); Railway Express Agency v. City of New York, 336 U.S. 106 (1949); McGowan v. Maryland, 366 U.S. 420 (1961).
1312 Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955); McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809 (1969); Schilb v. Kuebel, 404 U.S. 357, 364- 65 (1971); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981).
1313 City of New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976); City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974).
1314 Dandridge v. Williams, 397 U.S. 471, 485-86 (1970); Jefferson v. Hackney, 406 U.S. 535, 549 (1972). See also New York City Transit Auth. v. Beazer, 440 U.S. 568, 587-94 (1979).
1315 E.g., McGinnis v. Royster, 410 U.S. 263, 270-77 (1973); Johnson v. Robison, 415 U.S. 361, 374-83 (1974); City of Charlotte v. International Ass'n of Firefighters, 426 U.S. 283, 286-89 (1976). It is significant that these opinions were written by Justices who subsequently dissented from more relaxed standard of review cases and urged adherence to at least a standard requiring articulation of the goals sought to be achieved and an evaluation of the "fit" of the relationship between goal and classification. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 182 (1980) (Justices Brennan and Marshall dissenting); Schweiker v. Wilson, 450 U.S. 221, 239 (1981) (Justices Powell, Brennan, Marshall, and Stevens dissenting). See also New York City Transit Auth. v. Beazer, 440 U.S. 568, 594 (1979) (Justice Powell concurring in part and dissenting in part), and id. at 597, 602 (Justices White and Marshall dissenting).
1316 E.g., Lindsey v. Normet, 405 U.S. 56, 74-79 (1972); Eisenstadt v. Baird, 405 U.S. 438 (1972); James v. Strange, 407 U.S. 128 (1972); Department of Agriculture v. Moreno, 413 U.S. 528 (1973); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (rejecting various justifications offered for exclusion of a home for the mentally retarded in an area where boarding homes, nursing and convalescent homes, and fraternity or sorority houses were permitted). The Court in Reed v. Reed, 404 U.S. 71, 76 (1971), utilized the Royster Guano formulation and purported to strike down a sex classification on the rational basis standard, but, whether the standard was actually used or not, the case was the beginning of the decisions applying a higher standard to sex classifications.
Attempts to develop a consistent principle have so far been unsuccessful. In Railroad Retirement Board v. Fritz,1317 the Court acknowledged that "[t]he most arrogant legal scholar would not claim that all of these cases cited applied a uniform or consistent test under equal protection principles," but then went on to note the differences between Lindsley and Royster Guano and chose the former. But, shortly, in Schweiker v. Wilson,1318 in an opinion written by a different Justice,1319 the Court sustained another classification, using the Royster Guano standard to evaluate whether the classification bore a substantial relationship to the goal actually chosen and articulated by Congress. In between these decisions, the Court approved a state classification after satisfying itself that the legislature had pursued a permissible goal, but setting aside the decision of the state court that the classification would not promote that goal; the Court announced that it was irrelevant whether in fact the goal would be promoted, the question instead being whether the legislature "could rationally have decided" that it would.1320
1317 449 U.S. 166, 174-79 (1980). The quotation is at 176-77 n.10. The extent of deference is notable, inasmuch as the legislative history seemed clearly to establish that the purpose the Court purported to discern as the basis for the classification was not the congressional purpose at all. Id. at 186-97 (Justice Brennan dissenting). The Court observed, however, that it was "constitutionally irrelevant" whether the plausible basis was in fact within Congress' reasoning, inasmuch as the Court has never required a legislature to articulate its reasons for enactng a statute. Id. at 179. For a continuation of the debate over actual purpose and conceivable justification, see Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 680-85 (1981) (Justice Brennan concurring), and id. at 702-06 (Justice Rehnquist dissenting). Cf. Schweiker v. Wilson, 450 U.S. 221, 243-45 (1981) (Justice Powell dissenting).
1318 450 U.S. 221, 230-39 (1981). Nonetheless, the four dissenters thought that the purpose discerned by the Court was not the actual purpose, that it had in fact no purpose in mind, and that the classification was not rational. Id. at 239.
1319 Justice Blackmun wrote the Court's opinion in Wilson, Justice Rehnquist in Fritz.
1320 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461-70 (1981). The quoted phrase is at 466.
In short, it is uncertain which formulation of the rational basis standard the Court will adhere to.1321 In the main, the issues in recent years have not involved the validity of classifications, but rather the care with which the Court has reviewed the facts and the legislation with its legislative history to uphold the challenged classifications. The recent decisions voiding classifications have not clearly set out which standard they have been using.1322 Determination in this area, then, must await presentation to the Court of a classification which it would sustain under the Lindsley standard and invalidate under Royster Guano.
The New Standards: Active Review.—When government legislates or acts either on the basis of a "suspect" classification or with regard to a "fundamental" interest, the traditional standard of equal protection review is abandoned, and the Court exercises a "strict scrutiny." Under this standard government must demonstrate a high degree of need, and usually little or no presumption favoring the classification is to be expected. After much initial controversy within the Court, it has now created a third category, finding several classifications to be worthy of a degree of "intermediate" scrutiny requiring a showing of important governmental purposes and a close fit between the classification and the purposes.
Paradigmatic of "suspect" categories is classification by race. First in the line of cases dealing with this issue is Korematsu v. United States,1323 concerning the wartime evacuation of Japanese-Americans from the West Coast, in which the Court said that because only a single ethnic-racial group was involved the measure was "immediately suspect" and subject to "rigid scrutiny." The school segregation cases1324 purported to enunciate no per se rule, however, although subsequent summary treatment of a host of segregation measures may have implicitly done so, until in striking down state laws prohibiting interracial marriage or cohabitation the Court declared that racial classifications "bear a far heavier burden of justification" than other classifications and were invalid because no "overriding statutory purpose"1325 was shown and they were not necessary to some "legitimate overriding purpose."1326 "A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification."1327 Remedial racial classifications, that is, the development of "affirmative action" or similar programs that classify on the basis of race for the purpose of ameliorating conditions resulting from past discrimination, are subject to more than traditional review scrutiny, but whether the highest or some intermediate standard is the applicable test is uncertain.1328 A measure that does not draw a distinction explicitly on race but that does draw a line between those who seek to use the law to do away with or modify racial discrimination and those who oppose such efforts does in fact create an explicit racial classification and is constitutionally suspect.1329
1321 In City of Mesquite v. Aladdin's Castle, 455 U.S. 283, 294 (1982), the Court observed that it was not clear whether it would apply Royster Guano to the classification at issue, citing Fritz as well as Craig v. Boren, 429 U.S. 190 (1976), an intermediate standard case involving gender. Justice Powell denied that Royster Guano or Reed v. Reed had ever been rejected. Id. at 301 n.6 (dissenting). See also id. at 296-97 (Justice White).
1322 The exception is Reed v. Reed, 404 U.S. 71 (1971), which, though it purported to apply Royster Guano, may have applied heightened scrutiny. See Zobel v. Williams, 457 U.S. 55, 61-63 (1982), in which it found the classifications not rationally related to the goals, without discussing which standard it was using.
1323 323 U.S. 214, 216 (1944). In applying "rigid scrutiny," however, the Court was deferential to the judgment of military authorities, and to congressional judgment in exercising its war powers.
1324 Brown v. Board of Education, 347 U.S. 483 (1954).
1325 McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964).
1326 Loving v. Virginia, 388 U.S. 1, 11 (1967). In Lee v. Washington, 390 U.S. 333 (1968), it was indicated that preservation of discipline and order in a jail might justify racial segregation there if shown to be necessary.
1327 Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979), quoted in Washington v. Seattle School Dist., 458 U.S. 457, 485 (1982).
1328 Regents of the Univ. of California v. Bakke, 438 U.S. 265, 287-20 (1978) (Justice Powell announcing judgment of Court) (suspect), and id. at 355-79 (Justices Brennan, White, Marshall, and Blackmun concurring in part and dissenting in part) (intermediate scrutiny); Fullilove v. Klutznick, 448 U.S. 448, 491-92 (1980) (Chief Justice Burger announcing judgment of Court) ("a most searching examination" but not choosing a particular analysis), and id. at 495 (Justice Powell concurring), 523 (Justice Stewart dissenting) (suspect), 548 (Justice Stevens dissenting) (searching scrutiny).
1329 Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School Dist., 458 U.S. 457 (1982).
Toward the end of the Warren Court, there emerged a trend to treat classifications on the basis of nationality or alienage as suspect,1330 to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review,1331 and to pass on statutory and administrative treatments of illegitimates inconsistently.1332 Language in a number of opinions appeared to suggest that poverty was a suspect condition, so that treating the poor adversely might call for heightened equal protection review.1333
1330 Graham v. Richardson, 403 U.S. 365, 371-72 (1971).
1331 Reed v. Reed, 404 U.S. 71 (1971); for the hint, see Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972).
1332 See Levy v. Louisiana, 391 U.S. 68 (1968) (strict review); Labine v. Vincent, 401 U.S. 532 (1971) (lenient review); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972) (modified strict review).
1333 Cf. McDonald v. Board of Election Comm'rs, 394 U.S. 802, 807 (1969); Bullock v. Carter, 405 U.S. 134 (1972). See Shapiro v. Thompson, 394 U.S. 618, 658- 59 (1969) (Justice Harlan dissenting). But cf. Lindsey v. Normet, 405 U.S. 56 (1972); Dandridge v. Williams, 397 U.S. 471 (1970).
However, in a major evaluation of equal protection analysis early in this period, Justice Powell for the Court utilized solely the two-tier approach, determining that because the interests involved did not occasion strict scrutiny the Court would thus decide the case on minimum rationality standards.1334 Decisively rejected was the contention that a de facto wealth classification, with an adverse impact on the poor, was either a suspect classification or merited some scrutiny other than the traditional basis,1335 a holding that has several times been strongly reaffirmed by the Court.1336 But the Court's rejection of some form of intermediate scrutiny did not long survive.
Without extended consideration of the issue of standards, the Court more recently adopted an intermediate level of scrutiny, perhaps one encompassing several degrees of intermediate scrutiny. Thus, gender classifications must, in order to withstand constitutional challenge, "serve important governmental objectives and must be substantially related to achievement of those objectives."1337 And classifications that disadvantage illegitimates are subject to a similar though less exacting scrutiny of purpose and fit.1338 This period also saw a withdrawal of the Court from the principle that alienage is always a suspect classification, so that some discriminations against aliens based on the nature of the political order, rather than economics or social interests, need pass only the lenient review standard.1339
1334 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).
1335 411 U.S. at 44-45. The Court asserted that only when there is an absolute deprivation of some right or interest because of inability to pay will there be strict scrutiny. Id. at 20.
1336 E.g., United States v. Kras, 409 U.S. 434 (1973); Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).
1337 Craig v. Boren, 429 U.S. 190, 197 (1976). Justice Powell noted that he agreed the precedents made clear that gender classifications are subjected to more critical examination than when "fundamental" rights and "suspect classes" are absent, id. at 210 (concurring), and added: "As is evident from our opinions, the Court has had difficulty in agreeing upon a standard of equal protection analysis that can be applied consistently to the wide variety of legislative classifications. There are valid reasons for dissatisfaction with the 'two-tier' approach that has been prominent in the Court's decisions in the past decade. Although viewed by many as a result-oriented substitute for more critical analysis, that approach—with its narrowly limited 'upper tier'—now has substantial precedential support. As has been true of Reed and its progeny, our decision today will be viewed by some as a 'middle-tier' approach. While I would not endorse that characterization and would not welcome a further subdividing of equal protection analysis, candor compels the recognition that the relatively deferential 'rational basis' standard of review normally applied takes on a sharper focus when we address a gender-based classification. So much is clear from our recent cases." Id. at 210, n.*. Justice Stevens wrote that in his view the two-tiered analysis does not describe a method of deciding cases "but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion." Id. at 211, 212. Chief Justice Burger and Justice Rehnquist would employ the rational basis test for gender classification. Id. at 215, 217 (dissenting). Occasionally, because of the particular subject matter, the Court has appeared to apply a rational basis standard in fact if not in doctrine, E.g., Rostker v. Goldberg, 453 U.S. 57 (1981) (military); Michael M. v. Superior Court, 450 U.S. 464 (1981) (application of statutory rape prohibition to boys but not to girls). Four Justices in Frontiero v. Richardson, 411 U.S. 677, 684-87 (1973), were prepared to find sex a suspect classification, and in Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982), the Court appeared to leave open the possibility that at least some sex classifications may be deemed suspect.
1338 Mills v. Habluetzel, 456 U.S. 91, 99 (1982); Parham v. Hughes, 441 U.S. 347 (1979); Lalli v. Lalli, 439 U.S. 259 (1978); Trimble v. Gordon, 430 U.S. 762 (1977). In Mathews v. Lucas, 427 U.S. 495, 506 (1976), it was said that "discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes." Lucas sustained a statutory scheme virtually identical to the one struck down in Califano v. Goldfarb, 430 U.S. 199 (1977), except that the latter involved sex while the former involved illegitimacy.
1339 Applying strict scrutiny, see, e.g., Sugarman v. Dougall, 413 U.S. 634 (1973); Nyquist v. Mauclet, 432 U.S. 1 (1977). Applying lenient scrutiny in cases involving restrictions on alien entry into the political community, see Foley v. Connelie, 435 U.S. 291 (1978); Ambach v. Norwick, 441 U.S. 68 (1979); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). See also Plyler v. Doe, 457 U.S. 202 (1982).
Expansion of the characteristics which when used as a basis for classification must be justified by a higher showing than ordinary economic classifications has so far been resisted, the Court holding, for example, that age classifications are neither suspect nor entitled to intermediate scrutiny.1340 While resisting creation of new suspect or "quasi-suspect" classifications, however, the Court may nonetheless apply the Royster Guano rather than the Lindsley standard of rationality.1341
The other phase of active review of classifications holds that when certain fundamental liberties and interests are involved, government classifications which adversely affect them must be justified by a showing of a compelling interest necessitating the classification and by a showing that the distinctions are required to further the governmental purpose. The effect of applying the test, as in the other branch of active review, is to deny to legislative judgments the deference usually accorded them and to dispense with the general presumption of constitutionality usually given state classifications.1342
1340 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (upholding mandatory retirement at age 50 for state police); Vance v. Bradley, 440 U.S. 93 (1979) (mandatory retirement at age 60 for foreign service officers); Gregory v. Ashcroft, 501 U.S. 452 (1991) (mandatory retirement at age 70 for state judges). See also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442 (1985) (holding that a lower court "erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation").
1341 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); See discussion supra.
1342 Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 638 (1969).
It is thought1343 that the "fundamental right" theory had its origins in Skinner v. Oklahoma ex rel. Williamson,1344 in which the Court subjected to "strict scrutiny" a state statute providing for compulsory sterilization of habitual criminals, such scrutiny being thought necessary because the law affected "one of the basic civil rights." In the apportionment decisions, Chief Justice Warren observed that "since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized."1345 A stiffening of the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility1346 and the phrase "compelling state interest" was used several times in Justice Brennan's opinion in Shapiro v. Thompson.1347 Thereafter, the phrase was used in several voting cases in which restrictions were voided, and the doctrine was asserted in other cases.1348
While no opinion of the Court attempted to delineate the process by which certain "fundamental" rights were differentiated from others,1349 it was evident from the cases that the right to vote,1350 the right of interstate travel,1351 the right to be free of wealth distinctions in the criminal process,1352 and the right of procreation1353 were at least some of those interests that triggered active review when de jure or de facto official distinctions were made with respect to them. This branch of active review the Court also sought to rationalize and restrict in Rodriguez,1354 which involved both a claim of de facto wealth classifications being suspect and a claim that education was a fundamental interest so that affording less of it to people because they were poor activated the compelling state interest standard. The Court readily agreed that education was an important value in our society. "But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause… [T]he answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution."1355 A right to education is not expressly protected by the Constitution, continued the Court, and it was unwilling to find an implied right because of its un-doubted importance.
1343 Shapiro v. Thompson, 394 U.S. at 660 (Justice Harlan dissenting).
1344 316 U.S. 535, 541 (1942).
1345 Reynolds v. Sims, 377 U.S. 533, 562 (1964).
1346 Carrington v. Rash, 380 U.S. 89 (1965); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Williams v. Rhodes, 393 U.S. 23 (1968).
1347 394 U.S. 618, 627, 634, 638 (1969).
1348 Kramer v. Union Free School Dist., 395 U.S. 621 (1969); Cipriano v. City of Houma, 395 U.S. 701 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Dunn v. Blumstein, 405 U.S. 330 (1972).
1349 This indefiniteness has been a recurring theme in dissents. E.g., Shapiro v. Thompson, 394 U.S. 618, 655 (1969) (Justice Harlan); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 177 (1972) (Justice Rehnquist).
1350 E.g., Dunn v. Blumstein, 405 U.S. 330 (1972).
1351 E.g., Shapiro v. Thompson, 394 U.S. 618 (1969).
1352 E.g., Tate v. Short, 401 U.S. 395 (1971).
1353 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).
1354 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).
1355 411 U.S. at 30, 33-34. But see id. at 62 (Justice Brennan dissenting), 70, 110-17 (Justices Marshall and Douglas dissenting).
But just as Rodriguez was unable to prevent the Court's adoption of a "three-tier" or "sliding-tier" standard of review in the first phase of the active-review doctrine, so it did not by stressing the requirement that an interest be expressly or impliedly protected by the Constitution prevent the addition of other interests to the list of "fundamental" interests. The difficulty was that the Court decisions on the right to vote, the right to travel, the right to procreate, as well as others, premise the constitutional violation to be of the equal protection clause, which does not itself guarantee the right but prevents the differential governmental treatment of those attempting to exercise the right.1356 Thus, state limitation on the entry into marriage was soon denominated an incursion on a fundamental right which required a compelling justification.1357 While denials of public funding of abortions were held to implicate no fundamental interest—abortion being a fundamental interest—and no suspect classification—because only poor women needed public funding1358 —other denials of public assistance because of illegitimacy, alienage, or sex have been deemed governed by the same standard of review as affirmative harms imposed on those grounds.1359 And in Plyler v. Doe,1360 the complete denial of education to the children of illegal aliens was found subject to intermediate scrutiny and invalidated.
1356 Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66-68 (Justice Brennan concurring), 78-80 (Justice O'Connor concurring) (travel).
1357 Zablocki v. Redhail, 434 U.S. 374 (1978).
1358 Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).
1359 E.g., Jiminez v. Weinberger, 417 U.S. 628 (1974) (illegitimacy); Nyquist v. Mauclet, 432 U.S. 1 (1977) (alienage); Califano v. Goldfarb, 430 U.S. 199 (1977) (sex).
1360 457 U.S. 202 (1982).
Thus, the nature of active review in equal protection jurisprudence remains in flux, subject to shifting majorities and varying degrees of concern about judicial activism and judicial restraint. But the cases, more fully reviewed hereafter, clearly indicate that a sliding scale of review is a fact of the Court's cases, however much its doctrinal explanation lags behind.
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