296
Opinion of Souter, J.
But the point is that Fourteenth Amendment equal protection scrutiny is applied to such classifications, and if the scope of "equal protection" in the statute is to balance its constitutional counterpart, the statute ought to cover discriminations that would be impermissible under rational-basis scrutiny.
There is, indeed, even some extratextual evidence of a positive congressional intent to provide just such a statutory reach beyond what Griffin would allow. Some of the legislative history of § 2 of the 1871 Act suggests that the omission of any reference to race from the statutory text of equal protection was not the result of inadvertence, and that Congress understood that classifications infringing the statutory notion of equal protection were not to be limited to those based on race or some closely comparable personal quality. The most significant, and often quoted, evidence came from Senator Edmunds, who managed the bill on the Senate floor and remarked that if there were a conspiracy against a person "because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter . . . then this section could reach it." Cong. Globe, 42d Cong., 1st Sess., at 567.5 These are not, of course, all examples of discrimination based on any class comparable to race, and the Senator's list counters any suggestion that the subject matter of statutory equal protection was meant to be so confined.6
5 Carpenters did leave open the question whether the deprivation clause might apply to a conspiracy "aimed at any class or organization on account of its political views or activities . . . ." See Carpenters, supra, at 837.
6 Senator Edmunds' quoted language occurred in a discussion of both §§ 2 and 3 of the bill that became the Civil Rights Act of 1871. See Cong. Globe, 42d Cong., 1st Sess., at 567. That Senator Edmunds was referring to the statutory language at issue here is unmistakable because he stated that he was describing the conditions required before a conspiracy could be actionable "under the provisions of all this bill." See ibid.
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