History of Equal Protection and the Levels of Review

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In 1868, shortly after the end of the Civil War, the Fourteenth Amendment was passed to ensure fair treatment by the states of the newly-freed slaves. There is no language in the Bill of Rights which provides a federally applicable parallel to the Fourteenth Amendment's "Equal Protection" clause. The Fifth Amendment Due Process Clause, however, does for the federal government what the Fourteenth Amendment Equal Protection Clause does for state governments: it prevents unreasonable discrimination based on the use of classifications. Thus, in effect, equal protection analysis for a claim against the federal government is the same as that under the Fourteenth Amendment for a claim against a state. See Buckley v. Valeo, 424 U.S. 1 (1976).

Although the Equal Protection Clause has been read to protect against the discriminatory use of classifications besides race and national origin, in areas outside of race discrimination, the equal protection clause was not traditionally a major consideration. Historically, so long as the legislative classification (other than race or national origin) was rationally related to the legislative purpose, courts were not likely to strike down the law as an Equal Protection violation, even if the legislative purpose was itself invalid. So, while the Due Process Clause was widely used to strike down state laws in the early 1900s, the Equal Protection Clause did not seem to carry as much power.

EXAMPLE: Southernstate passes a law requiring all women to demonstrate their financial self-sufficiency prior to filing for divorce, although men filing for divorce need make no such showing. The gender classification, not fitting into one of the two traditionally suspect classes of race or national origin, would pass muster so long as it is rationally related to some legislative purpose. Even if the stated legislative purpose was “to discourage women from divorcing their husbands,” under the old version of a “rational basis test” the law would pass, as the legitimacy of the legislative goal itself was not a consideration.

During the era of the "Warren Court" (1953-1968, when Earl Warren was Chief Justice of the U.S. Supreme Court) we saw significant changes in the fields of individual rights, through cases like Miranda v. Arizona, 384 U.S. 436 (1966) (see Police Interrogation) and important Due Process decisions such as Griswold v. Connecticut, 381 U.S. 479 (1965) (see Due Process of Law). Most importantly for our purposes here was the broadening and strengthening of the Equal Protection Clause under the Warren Court. Prior to the Warren Court, the rational basis test was used for classifications not involving race or national origin, and the old version of this test, as noted above, did not look to the legitimacy of the state goal at hand. Through the Warren Court years, two areas were seen to require a higher standard of scrutiny rather than the rational basis test. First, the concept of "suspect classifications" developed as an area in which strict scrutiny was required. This included the classifications of race and national origin, and while it leaves room for other classifications heretofore subjected merely to the rational basis test, no other classifications have been clearly labeled “suspect” by the Court. Second, the concept of "fundamental rights" developed as another area requiring application of a higher level of scrutiny.

In the upcoming sections of this chapter we will discuss just which classifications are “suspect” and which rights are “fundamental” such that the highest level of review, strict scrutiny, is applied, and which cases are subjected only to rational basis review. In addition, the Court has adopted a middle level of review for cases that fall in between the strict and rational basis scrutiny levels, called "intermediate scrutiny."

Let us start by examining the three levels of review applied in Equal Protection and Due Process cases: (1) Rational Basis Review; (2) Intermediate Scrutiny; (3) Strict Scrutiny.

Rational Basis Review

Today’s rational basis review is not quite the same as that discussed above. Rational basis review, in its current form, asks whether

“there is some rational relationship between disparity of treatment and some legitimate governmental purpose.”

Central State University v. American Assoc. of University Professors, 526 U.S. 124, 128 (1999), citing Heller v. Doe, 509 U.S. 312, 319-321 (1993). If this sounds familiar it is because the same standard is used in substantive due process cases where non-fundamental rights are at stake. There is a presumption of constitutionality and “the burden is on the one attacking the legislative arrangement to negate every conceivable basis which might support it.” Heller at 321.

Just how far does this assumption of constitutionality go? The Court in Heller also pointed out that a state need not produce any evidence demonstrating the rationality of the classification at issue, and that when a law is passed, the legislature does not even need to articulate any purpose or rationale supporting the classification. In other words, a state can pass a law which treats different classes differently, and so long as the class is such that the law is subjected to rational basis review only, any conceivable rational basis for drawing the classification, even if it wasn’t the actual basis for the law, will suffice to pass muster under this test.

EXAMPLE: New Ridgefield, Connecticut, is an up-and-coming, bustling small city. Traffic accidents are on the rise, in part because of the high number of private automobiles which carry advertising signs for various services and products. In an effort to reduce traffic accidents, a law is passed banning advertisements on private vehicles except for services or products offered by the owner of that vehicle. Assume that rational basis review will apply. Under that standard, the law seems rationally related to the intent of reducing accidents. The fact that the law does not go further and ban all advertisements is not sufficient to strike it down under the Equal Protection Clause. See Railway Express Agency v. New York, 336 U.S. 106 (1949).

EXAMPLE: Westernstate passes a law requiring that all automobiles initially purchased or initially registered in that state after February 1, 2014, pass certain rigorous emissions tests. Cars initially purchased and initially registered prior to that date need only meet the current emissions standards, even if subsequently purchased or registered by a new owner at some point after February 1, 2014. Because this law is rationally related to achieving a conceivable legitimate government purpose (e.g., reducing harmful emissions) it will withstand an Equal Protection claim even if no government purpose was enunciated when the law was passed.

Although a state need not provide a stated purpose when passing a law, there must be some conceivable legitimate purpose to which the law could be rationally related in order to pass the rational basis test. In determining whether there exists such a legitimate goal, courts will grant great latitude and deference to the legislature.

EXAMPLE: Southernstate passes a law which taxes out-of-state insurance companies at a rate higher than that applied to Southernstate insurance companies. The legislative history indicates that the law was intended to “foster and lend support to the insurance industry here in Southernstate, which has done so very much for our citizens over the years and has of late struggled to compete with larger, out-of-state companies.” Unfortunately, this is one situation in which even the relatively weak rational basis test will lead a court to strike down the law, as promoting a home-state business by discriminating against out-of-state competitors is not a legitimate state goal, and the law’s rational relation to that goal is therefore irrelevant. See Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985).

Intermediate Scrutiny

For a number of years, all Equal Protection cases were subject either to rational basis review or to strict scrutiny. Beginning with the Burger Court, however, the notion of "intermediate scrutiny" began to develop. In Clark v. Jeter, 486 U.S. 456, 461 (1988), the Court ruled that to “withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.” So the relation to the objective must be more than merely non-arbitrary or rational – it must be substantial – and the objective itself must be more than merely valid or permissible – it must be important.

EXAMPLE: Westernstate has a law which requires that a paternity suit be brought, if at all, within 5 years of the birth of the child. The statute of limitations is intended to prevent Westernstate from wasting resources on fraudulent or stale claims. Such a law would not pass the application of intermediate scrutiny, as the five-year period is not substantially related to the state purpose.

Rational basis review is applied to all non-suspect classes, and, as mentioned above and discussed in more detail below, strict scrutiny is applied to suspect classes and laws burdening fundamental rights. What, then, remains to be subjected to intermediate scrutiny? Intermediate scrutiny applies to what are sometimes referred to as "quasi-suspect" classifications, which have been applied to discriminatory classifications based on sex or illegitimacy. Unlike with rational basis review, the state objectives for the discriminatory laws subjected to intermediate scrutiny

“must be genuine, not hypothesized or invented post hoc in response to litigations” and the justification offered by the state must be “exceedingly persuasive,”

The highly respected Second Circuit recently summarized this level of scrutiny well:

“Intermediate scrutiny typically is used to review laws that employ quasi-suspect classifications…such as gender…or legitimacy…. On occasion intermediate scrutiny has been applied to review a law that affects ‘an important though not constitutional right.’”

Ramos v. Town of Vernon, 331 F. 3d 315, 321 (2d. Cir. 2003). Laws relating to gender or alienage, along with other “important, but not constitutional rights,” will be subjected to this middle level scrutiny.

EXAMPLE: Southernstate Military University has a long-standing tradition of excellence in educating young minds and turning them into leaders as civilians and soldiers. It also has a long-standing tradition of doing so only if those young minds happen to come in male bodies – women are not admitted to this public institution. Despite their one hundred and fifty year tradition, unless the school can provide some “exceedingly persuasive justification” for the gender-based discriminatory policy, it will not pass the intermediate scrutiny Equal Protection review to be applied in such cases. See United States v. Virginia, 518 U.S. 515 (1996) (“the VMI case”).

While intermediate scrutiny is to be applied to quasi-suspect classes, it is important to note that in the VMI case the Court used the words “exceedingly persuasive justification” to describe the burden on VMI, which seems to be something stronger than the traditional language of "substantial relationship to an important state interest" most often applied. In general, however, it seems safe to assume that, for other quasi-suspect classifications (other than gender), the more traditional formulation of intermediate scrutiny still applies.

Strict Scrutiny

When suspect classifications or fundamental rights are at stake, Equal Protection analysis requires the use of the strict scrutiny standard. As its name implies, this level of review is far more stringent than either rational basis review or intermediate scrutiny. For years, strict scrutiny was applied only in cases of laws which discriminated on the basis of race or national origin, but this exclusivity has been tested at times and might not persist indefinitely (see Suspect Classifications Based on Race and discussion regarding treatment of alienage classifications). This level of review, however, will not be applied simply because a law is, in its effect, prejudicial against a suspect classification or regarding a fundamental right. Rather, this high standard is intended to be a means by which particularly invidious or prejudicial discriminatory purposes, if it exists, can be brought to light. See U.S. v. Carolene Products Co., 304 U.S. 144, 153 (1938).

EXAMPLE: Southernstate passes a law which requires “all black employees shall receive 3/5 the compensation of a white employee for performing the same job.” This racial classification will be subjected to the strict scrutiny standard.

In order for a law to survive strict scrutiny under the Equal Protection Clause, the state interest involved must be more than “important” – it must be compelling. And the law itself must be necessary in order to achieve the objective – if there is any less discriminatory means of achieving the goal, the law will be struck down. See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967). The requirement of necessity manifests itself in that courts require that the law be narrowly tailored to meet the objective. See Nunez v. City of San Diego, 114 F. 3d 935, 946 (9th Cir. 1997). As a practical matter, it is rare for a law to survive strict scrutiny review, and the last time a law involving discrimination on the basis of national origin or race survived strict scrutiny was in 1944. See Korematsu v. U.S., 323 U.S. 214 (1944).

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