Equal Protection Clause

Clause set out in the Fourteenth Amendment of the Constitution that dictates that state governments cannot pass or enforce any laws based solely on a specific classification of person by race, gender, religion, ethnicity, or age.

The Equal Protection Clause of the Fourteenth Amendment, adopted in 1868, expressed the commitment of victorious Republican forces after the Civil War to include in the Constitution some protection for the equal rights of newly emancipated slaves. Discussions of equality in 1868 did not sharply distinguish among the protections afforded by the Due Process Clause, the Privileges and Immunities Clause, and the Equal Protection Clause. The focus of the concern for equality was on the rights of African‐Americans, but the framers of the Equal Protection Clause deliberately drafted it to provide protection for the equal rights of all persons. In recent years this has meant that the clause provides protection for the rights of noncitizens, but shortly after the adoption of the amendment the most important result of the use of the general term person was to assure that corporations would be protected against invasions of their rights by state legislatures (Santa Clara County v. Southern Pacific Railroad Co., 1886).

By its terms, the Equal Protection Clause covers action only by state governments. Bolling v. Sharpe (1954), one of the desegregation cases that involved the District of Columbia schools, held that discrimination by Congress could violate the Due Process Clause of the Fifth Amendment. The Court has, in general, applied the same standards of equal treatment to action by Congress as it has to action by state legislatures.

Ideas of equality prevalent in the 1860s distinguished between civil, political, and social rights. One reason the Fourteenth Amendment was adopted was to ensure that the Civil Rights Act of 1866 could not be repealed. That act protected equality with respect to civil rights, understood as including the rights to own property and make contracts, and to appear as a witness in court to protect those rights. Equality with respect to civil rights meant equal status in the legal relations of the private economy, coupled with the right to enforce that equal status. Equality with respect to political rights was more controversial at the outset, with many supporters of equal civil rights opposed to equal voting rights for African‐Americans. The adoption of the Fifteenth Amendment largely abated any concern over equal political rights for a time, but concern about equal social rights persisted well into the twentieth century. Social rights were those arising from the personal, noneconomic interactions among people, and there was general agreement in 1868 that the federal government ought not attempt to guarantee equality in that domain.

The distinction between civil, political, and social rights became blurred in the late nineteenth century, as the national commitment to equal rights of some sort for African‐Americans faded. The Supreme Court held that statutes explicitly denying African‐Americans the right to sit on juries violated the Constitution's promise of equality (Strauder v. West Virginia, 1880) and also held that the Constitution was violated when administrators used a law that did not overtly refer to race to impose disabilities only on members of a racial minority (Yick Wo v. Hopkins, 1886). However, the Court construed some federal civil rights statutes narrowly and held that Congress lacked power under section 5 of the Fourteenth Amendment to enact a law barring places of public accommodation from discriminating on the basis of race because, in the Court's view, that was an effort to require equality in social rights (Civil Rights Cases, 1883). When the Court upheld a statute requiring railroads to segregate their passengers by race (Plessy v. Ferguson, 1896), it effectively abandoned the effort to assure civil equality for African‐Americans through the Constitution, for in the terms used in 1868 the statute denied the equal right of African‐Americans to enter into a contract on nondiscriminatory terms that the railroads were willing to offer.

Until the 1940s the Equal Protection Clause was rarely invoked to invalidate legislation, occasionally being used to restrict the ability of states to regulate business. Concern about the racist policies of Nazi Germany, and about the incompatibility of racial discrimination with the values the Allied powers were defending during World War II, led to a revitalization of the Equal Protection Clause. The Court suggested that it would apply the Constitution with special care in cases involving disabilities imposed on “discrete and insular minorities” (Footnote Four, United States v. Carolene Products, 1938). And in the course of upholding the internment of Japanese Americans during the war, it stated that classifications affecting racial minorities had to survive “strict scrutiny” (Korematsu v. United States, 1944), which the Japanese relocation measures did, the only instance in modern times when a race‐discriminating government action has. The final element of the revival of the Equal Protection Clause occurred when the Court invalidated a statute requiring the sterilization of violent recidivists, but not recidivists in white‐collar crime, on the ground that classifications affecting fundamental interests had to be strictly scrutinized (Skinner v. Oklahoma, 1942).

During the 1960s the Supreme Court overturned numerous statutes requiring segregated public facilities and began to explore the broader implications of the doctrine it had begun to develop in the prior decade. Cases like Shapiro v. Thompson (1969), invalidating a requirement that recipients of public assistance reside in a state for a year before they became eligible for assistance, suggested that the Court was about to treat poverty as a classification that entailed strict scrutiny (see Indigency). The Court under Chief Justice Warren Burger pulled back from the broader suggestions in these cases and ultimately held that strict scrutiny was appropriate only in cases involving traditional racial minorities and fundamental interests that were themselves spelled out in the Constitution (*San Antonio School District v. Rodriguez, 1973).

Formally, the problem of equal treatment arises when the government treats one group differently from another in the pursuit of some social goal. Ordinarily, not all members of the disadvantaged group will contribute to the evil that the government is trying to avert and some members of the favored group will contribute to that evil. Classifications are therefore typically both “overinclusive” and “underinclusive.” The problem for equal protection law is to specify what degree of lack of correspondence between the social goal and the classification used is permissible under what circumstances.

Equal protection law can be described in two ways. First, the Court distinguishes between statutes that themselves utilize racial or other “suspect” classifications and statutes that, though stated in nonracial terms, nonetheless have a “disparate impact” on racial minorities. If the statutes use racial terms, they must survive strict scrutiny, which means that the legislature must be attempting to promote extremely important social goals, and the use of the racial category must be almost essential if those goals are to be served. The fit between the social goal and the classification must be extremely close. In contrast, if the statutes are “facially neutral” in not using racial terms, the fact that they have a disparate impact in practice does not automatically lead to strict scrutiny. Only if the unfair impact on minorities is deliberately intended by the legislature will the Court demand strict scrutiny; otherwise, the legislation must simply be using a classification that is a rational method of accomplishing social goals that the legislature believes important.

The second description of equal protection law treats the distinction between “strict scrutiny” and “rational relationship” differently. On this view the Court has identified several types of classifications. Some, such as racial classifications, call for strict scrutiny, where the fit between social goal and classification must be extremely close, whereas others, such as those basing government action on the ability of people to pay for services or on their participation in certain aspects of the private economy, are social and economic legislation where the legislature must merely be rational in using the classification to serve its goals. In the latter cases, the fit between social goal and classification can be quite loose; the legislature can regulate many people who do not contribute to the evil it is trying to avert, and it can fail to regulate a great many people who do contribute to that evil. Groups that are entitled to strict scrutiny, the Court has suggested, are “discrete and insular minorities” who have historically faced extensive unjustifiable discrimination, who are unable to remove themselves from the category, and who have been the subject of such prejudice that they are unable to protect their interests in the legislative process.

There is, however, a third group of classifications that calls for “intermediate” scrutiny. The doctrinal formulations of intermediate scrutiny have varied, as have the groups that elicit it. The prototypical case involves a classification based on gender, but the Court has sometimes used heightened or intermediate scrutiny in cases involving aliens and extramarital children (see Alienage and Naturalization). Intermediate scrutiny typically means that the Court will look somewhat skeptically on the claim that using a gender or similar classification is necessary to serve important social goals, but it will not demand the extraordinarily high levels of justification that it seeks in cases involving strict scrutiny. Using intermediate scrutiny, the Court invalidated gender segregation in nursing schools (Mississippi University for Women v. Hogan, 1982) and Virginia's operation of a military college to train only men with a distinctive curriculum (United States v. Virginia, 1996). It upheld a requirement that only men register for the draft, at least when women are not eligible by statute for combat duty (Rostker v. Goldberg, 1981).

Analysts have had difficulty reconciling the Court's results with the doctrinal formulations it uses. For example, the Court explicitly refrained from requiring either strict or intermediate scrutiny in a case involving discrimination against the mentally retarded, but it nonetheless found unconstitutional a city's attempt to bar a residential group home for the mentally retarded (City of Cleburne v. Cleburne Living Center, 1985). Justice Thurgood Marshall criticized the Court for pretending that its equal protection analysis uses rigid categories, in which only a few “suspect” classifications or fundamental rights spelled out elsewhere in the Constitution receive special protection. Rather, he argued, it has adjusted the degree of justification it demands according to a sensitive calculus that takes into account questions of degree. These questions include how important the interest affected is, whether or not that interest is specifically protected by the Constitution, and how similar the affected group is to groups that have historically been the subjects of unjustifiable discrimination. Justice John Paul Stevens suggested a similar approach, based on his view that “there is only one Equal Protection Clause” (Craig v. Boren, 1976), not several with different standards of review.

Commentators generally agree that Marshall's analysis and Stevens's make more sense of the Court's actual behavior, and that a more flexible approach than the Court's is appropriate to deal with the varied problems of classification that the Court confronts. Some decisions suggest a relaxation of the Court's dedication to the “tier” approach. Romer v. Evans (1996) invalidated a Colorado initiative that denied homosexuals and lesbians the ability to secure “protected status” under state antidiscrimination rules, invoking rational‐basis review and refraining from holding that sexual orientation was a suspect classification. *Grutter v. Bollinger (2003) invoked strict scrutiny but nonetheless upheld an affirmative action program, thus making it clear that, contrary to a widely held view, strict scrutiny was not always “strict in theory but fatal in fact.”

Despite these decisions and academic criticisms, the Court seems committed to using the verbal formulations expressed in the “tier” approach.

See also Fourteenth Amendment; Race and Racism.

Bibliography

• Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).
• Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, Harvard Law Review 86 (1972): 1–48.
• Kenneth W. Simons, Overinclusion and Underinclusion: A New Model, UCLA Law Review 36 (1989): 447–528

— Mark V. Tushnet

The Fourteenth Amendment guarantees to Americans ‘the equal protection of the laws’. State and federal law-makers are prohibited from arbitrarily discriminating against particular groups such as blacks, women, and the disabled. This is not to say that discrimination is never constitutionally permissible. Legislation that taxes people according to their ability to pay is regarded as reasonable. But state laws requiring or permitting segregation in public schools according to race were, in 1954, deemed to contravene the constitutional principle of ‘equal protection’ (Brown v. The Board of Education at Topeka, Kansas (1954) ).

— David Mervin

For more information on equal protection, visit Britannica.com.

The constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (Declaration of Independence)

The concept of equal protection and equality in the United States is as old as the country itself. In 1776, Thomas Jefferson and the American colonists boldly announced the "self-evident" truth of human equality. Yet the meaning of equality was neither obvious nor clearly defined. The "peculiar institution" of slavery was intricately woven into America's economic, social, and political fabric. Many Americans owned slaves, and most, including Jefferson himself, believed in the inferiority of the black race. James Madison and the other Founding Fathers drafted a national constitution that protected the slave trade and recognized the rights of slave owners. Article I, Section 2, of the Constitution counted a slave as only three-fifths of a person for the purposes of representation in Congress.

Slave codes permitted slave masters to buy, sell, and lease blacks like personal property. Slaves owed their masters an unqualified duty of obedience. Slave owners, on the other hand, were free to do as they pleased, short of murdering their slaves. Only community mores, common sense, and individual conscience restrained slave owners. Very few laws protected slaves from abusive or maniacal masters, and those that did were seldom enforced. In 1857, the U.S. Supreme Court placed its stamp of approval on the institution of slavery, holding that slaves were not "citizens" within the meaning of the Constitution, but only "property" lacking any constitutional protection whatsoever (Dred Scott v. Sandford, 60 U.S., 15 L. Ed. 691 [19 How.] 393).

From the United States' inception, then, a gulf has separated the Jeffersonian ideal of human equality from the reality of racial inequality under the law. The tension separating the aspirations of the Declaration of Independence from the barbarism of slavery ultimately erupted in the Civil War (1861-65). The victory won by the North in the War between the States ended the institution of slavery in the United States and commenced the struggle for civil rights that continues to this day. This struggle began with the ratification of the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments during the aftermath of the Civil War.

The Thirteenth Amendment abolished slavery and involuntary servitude, except when imposed as punishment for a crime. The Fifteenth Amendment did not expressly grant black citizens the right to vote, but prohibited state and federal governments from denying this right based on "race, color, or previous condition of servitude." Each amendment gave Congress the power to enforce its provisions with "appropriate legislation."

Although both of these amendments were important, the Fourteenth Amendment has had the greatest influence on the development of civil rights in the United States. Section 1 of the Fourteenth Amendment provides,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The first clause emasculated the Dred Scott decision by bestowing national citizenship upon all blacks born or naturalized in the United States, making them eligible for federal protection of their civil rights. The Privileges and Immunities Clause, once believed a potential source for civil rights, was narrowly interpreted by the Supreme Court in 1873 and has since remained dormant (Slaughter-House cases, 83 U.S., 21 L. Ed. 394 [16 Wall.] 36).

The Equal Protection Clause was also narrowly interpreted by the Supreme Court in the nineteenth century, but became the centerpiece of the civil rights movement after World War II (1939-45). It spawned desegregation, integration, and affirmative action and promoted equal treatment and concern for the races under state law. It also provided the country with a starting point for a meaningful dialogue regarding the problems of inequality and discrimination. This dialogue has manifested itself in U.S. constitutional, statutory, and common law.

Constitutional Law

Inequalities during Reconstruction

The ratification of the Fourteenth Amendment occurred during a period in U.S. history known as the Reconstruction. In this era, the South was placed under military occupation by the North, and African Americans realized some short-term benefits. Ku Klux Klan violence was temporarily curbed. Black Codes, passed by southern states after the Civil War to replace slavery with a segregated system based on social caste, were dismantled. Blacks were elected to state and federal office. Some achieved prominent status in legal circles, including one African American who obtained a seat on the South Carolina Supreme Court.

But Reconstruction was not a substitute for civil rights, and the improvements realized by African Americans proved evanescent. By 1880 the North's passion for equality atrophied, as did its interest in the fate of African Americans. In the vacuum left by the North's withdrawal, southern racism flourished and Klan terrorism burgeoned. Labor codes were passed relegating blacks to virtual serfdom. These codes made it illegal for anyone to lure blacks away from their job for any reason, including better working conditions and wages. Some codes provided criminal penalties for African Americans who quit their job, even when no debt was owed to their employer.

Advancements made during Reconstruction were further eroded when the Supreme Court invalidated the Civil Rights Act of 1875 (Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 [1883]). This act proclaimed "the equality of all men before the law" and promised to "mete out equal and exact justice" to persons of every "race, color, or persuasion" in public or private accommodations alike. In striking down the law, the Supreme Court said that when

a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be a special favorite of the law.

The Court was not persuaded that this act was the type of "appropriate legislation" contemplated by the Fourteenth Amendment.

The Rise and Fall of Separate but Equal

The Supreme Court's laissez-faire attitude toward racial inequality was also reflected in the area of segregation. As Reconstruction collapsed, southern states gradually passed statutes formally segregating the races in every facet of society. Public schools, restaurants, rest rooms, railroads, real property, prisons, and voting facilities were all segregated by race. The Supreme Court placed its imprimatur on these forms of racial apartheid in the landmark decision Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).

Homer Plessy, who was seven-eighths Caucasian and one-eighth African, was prohibited from traveling on a railway coach for whites, under a Louisiana statute requiring "equal but separate accommodations" for black and white passengers. The Supreme Court, in an 8-1 decision, said this statute did not violate the Equal Protection Clause of the Fourteenth Amendment: "The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but … it could not have been intended to abolish distinctions based upon color, or to enforce … a commingling of the two races upon terms unsatisfactory to either." The Fourteenth Amendment, the Court concluded, was "powerless to eradicate racial instincts or to abolish distinctions based on physical differences."

Following Plessy, the "separate-but-equal" doctrine remained the lodestar of Fourteenth Amendment jurisprudence for over half a century. Legally prescribed segregation was upheld by the Court in a litany of public places, including public schools. As Adolf Hitler rose to power in Germany during the 1930s, however, many U.S. citizens began to reconsider their notions of equality. Nazi policies of Aryan superiority, racial purity, ethnic cleansing, and extermination made many U.S. citizens view segregation in a darker light. The juxtaposition of the Allied powers fighting totalitarianism in World War II and the citizenry practicing racial discrimination in the United States seemed hypocritical to many, especially when segregated African American troops were sacrificing their lives on the battlefield.

A series of Supreme Court decisions began to limit the scope of the separate-but-equal doctrine. The first hint of the Court's changing perspective came in the footnote of an otherwise forgettable case, United States v. Carolene Products, 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938). In Carolene Products, the Court upheld a federal statute regulating commerce, applying a presumption of constitutionality to legislation in this area. However, in footnote 4, the Court cautioned that this presumption may not apply to legislation "directed at national … or racial minorities … [where] prejudice against discrete and insular minorities may be a special condition, which tends to seriously curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial scrutiny."

The Court employed a "more searching judicial scrutiny" in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 (1938). This case involved a black applicant who was denied admission to the University of Missouri Law School solely because of his color. The state of Missouri, which had no law school for blacks, attempted to fulfill its separate-but-equal obligations by offering to pay for the black applicant's tuition at a comparable out-of-state law school. The Supreme Court held that this arrangement violated the applicant's Fourteenth Amendment rights. The Court ruled that Missouri was required to provide African American law students with equal educational opportunities within its own borders, and could not shirk this responsibility by relying on educational opportunities offered in neighboring states.

When states did offer black students a separate legal education, the Supreme Court closely examined the quality of the educational opportunities afforded to each race in the segregated schools. In Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114 (1950), the Court ruled that the segregated facilities offered to black and white law students in Texas were not substantially equal. The Court determined that the faculty, library, and courses offered at the African American law school were patently inferior and denied the black students equal protection of the laws.

On the same day Sweatt was decided, the Court invalidated Oklahoma's attempt to segregate graduate students of different races within a single educational facility (McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 [1950]). Black law students at the University of Oklahoma were required to attend class in an anteroom designated for "coloreds only," study on the mezzanine of the library, and eat in the cafeteria at a different time than white students. The Court struck down these arrangements, determining that segregation impaired the students' "ability to study, engage in discussions, exchange views … and in general, learn [the] profession." According to the Court, the Fourteenth Amendment required the integration of black and white graduate students.

Brown v. Board of Education

Plessy, Carolene Products, and so forth, foreshadowed the watershed equal protection decision handed down by the U.S. Supreme Court in 1954, Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873. Brown reviewed four consolidated cases in which local governments segregated public schools by race. In each case, black students were denied admission on an integrated basis. The question before the Court was not whether the segregated educational facilities were of a similar quality. Instead, the question was whether, under any circumstances, segregated educational opportunities could ever be equal, or substantially equal, in nature. In a resounding unanimous opinion, the Court said that separate-but-equal education is "inherently unequal" and "has no place" in the field of public education.

Citing Sweatt and McLaurin, the Court reiterated that students' ability to learn is stunted without exposure to the viewpoints of different races. The Court also underscored the sociological and psychological harm segregation inflicts on minority children, finding that segregation "is usually interpreted as denoting the inferiority of the Negro group." The Court added, "Segregation with the sanction of law … has a tendency to [retard] the educational and mental development of Negro children and deprive them of some of the benefits they would receive in a racial[ly] integrated school system."

When the Brown decision was announced, observers realized that the rationale applied by the Court had far-reaching consequences. If segregation in public schools denoted the inferiority of African Americans, so did segregation elsewhere in society. If integration enhanced educational opportunities for U.S. citizens of every race, then perhaps integration could spur economic growth and social development. Observers also realized that if segregation in public schools violated the Equal Protection Clause, then all forms of government-imposed segregation were vulnerable to constitutional attack.

Modern Equal Protection Jurisprudence

Over the next forty years, the Supreme Court demonstrated that the principles enunciated in Brown were not limited to racial segregation and discrimination. In addition to striking down most legislative classifications based on race, the Court closely examined classifications based on length of state residency, U.S. citizenship, and gender. The Court looked carefully at legislation denying benefits to children born out of wedlock. Government classifications denying any group a fundamental right were also reviewed with judicial skepticism.

The Supreme Court has recognized that nearly all legislation classifies on the basis of some criteria, bestowing benefits or imposing burdens on one group and denying them to another. For example, the government offers veterans, indigent people, and elderly people free or low-cost medical services that are not available to the rest of society. Progressive tax rates impose higher rates of taxation on the wealthy. Few such classifications are perfectly drawn by the legislature.

Most classifications are either overinclusive or underinclusive. An overinclusive classification contains all persons who are similarly situated and also persons who should not be included. Legislation that is intended to protect poor and fragile elderly people but actually extends to all senior citizens is overinclusive. An underinclusive classification excludes some similarly situated persons from the intended legislative benefit or detriment. Legislation that is designed to eliminate fraud in government but actually excludes executive branch employees from its regulatory grasp is underinclusive. Some classifications can be both underinclusive and overinclusive.

The Supreme Court has developed a three-tiered approach to examine all such legislative classifications. Under the first tier of scrutiny, known as strict scrutiny, the Court will strike down any legislative classification that is not necessary to fulfill a compelling or overriding government objective. Strict scrutiny is applied to legislation involving suspect classifications and fundamental rights. A suspect classification is directed at the type of "discrete and insular minorities" referenced in the Carolene Products footnote. A fundamental right is a right that is expressly or implicitly enumerated in the U.S. Constitution, such as freedom of speech or assembly. Most legislation reviewed by the Supreme Court under the strict scrutiny standard has been invalidated, because very few classifications are necessary to support a compelling government objective.

The second tier of scrutiny used by the Court to review legislative classifications is known as heightened, or intermediate, scrutiny. Legislation will not survive heightened scrutiny unless the government can demonstrate that the classification is substantially related to an important societal interest. Gender classifications are examined under this middle level of review, as are classifications that burden extramarital children.

The third tier of scrutiny involves the least amount of judicial scrutiny and is known as the rational relationship test. The Supreme Court will approve legislation under this standard so long as the classification is reasonably related to a legitimate government interest. The rational relationship test permits the legislature to employ any classification that is conceivably or arguably related to a government interest that does not infringe upon a specific constitutional right. An overwhelming majority of social and economic laws are reviewed and upheld by courts using this minimal level of scrutiny.

Classifications Based on Race

Applying strict scrutiny, the Supreme Court has consistently struck down legislative classifications based on race. Relying on the Brown decision, the Court struck down a series of state laws segregating parks, playgrounds, golf courses, bathhouses, beaches, and public transportation. Because the Fourteenth Amendment protects against only government discrimination, discrimination by private individuals or businesses is not proscribed under the Equal Protection Clause unless the government is significantly involved in the private activity. Although the Equal Protection Clause does not offer protection against discriminatory laws promulgated by the president, Congress, or federal administrative agencies, the Supreme Court has interpreted the Due Process Clause of the Fifth Amendment to provide such protection (Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 [1954]).

The equal protection guarantee extends not only to laws that obviously discriminate on their face as did the laws that intentionally segregated races in public schools, but also to government action having a discriminatory purpose, effect, or application. Governmental activity with a discriminatory purpose, also known as purposeful discrimination, may occur when a prosecutor exercises a peremptory challenge (the right to exclude a juror without assigning a reason or legal cause) to exclude a member of a minority race from a jury (Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 [1986]). If the prosecutor is unable to articulate a reason for striking the juror that is unrelated to race, the peremptory challenge will be nullified by the court.

The discriminatory impact of a race-neutral classification may also doom legislation under the Fourteenth Amendment. For example, following the demise of Reconstruction, many former Confederate states enacted legislation requiring residents to pass literacy tests before they could register to vote, but exempted persons who had been qualified to vote at an earlier time when blacks were disenfranchised slaves (i.e., Caucasians). This " grandfather clause" exemption was struck down by the Supreme Court because of its discriminatory impact on African Americans. The Court also struck down other voting restrictions, including "white primaries," which excluded African Americans from participating in a state's electoral process for selecting delegates to a political party convention.

A law can be neutral on its face or in purpose, but still be applied in a discriminatory manner. In Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), the Supreme Court struck down a San Francisco ordinance banning the operation of hand laundries in wooden buildings, because local officials were closing down only laundries owned by persons of Asian descent. White owners of such institutions were permitted to keep their businesses open.

Proof of discriminatory purpose, effect, or application can be difficult. Courts will search the legislative history of a particular classification for discriminatory origins. Courts also consider specific discriminatory actions taken by state officials in the past. Statistical evidence is relevant as well, but insufficient to establish discrimination by itself (McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 [1987]).

McCleskey involved a black man who was convicted and sentenced to death for killing a white police officer. On appeal, attorneys for the defendant relied on a sophisticated statistical analysis indicating that blacks were significantly more likely to receive the death penalty for killing a white person than were whites convicted of killing a black person. In a 5-4 decision, the Supreme Court said this evidence was not enough to demonstrate that the defendant had been denied equal protection. The majority held that the defendant could have prevailed under the Fourteenth Amendment only if he had shown a discriminatory purpose on the part of the Georgia legislature when it enacted the death penalty legislation, or on the part of the jurors in his trial when they imposed the death sentence.

Racial Classifications Surviving Judicial Scrutiny

Classifications based on race usually sound the death knell for the legislation containing them, with two notable exceptions. The first involves the internment of Americans with Japanese ancestry during World War II, and the second comes in the area of affirmative action.

Japanese American internment

Pursuant to concurrent presidential, congressional, and military action, over one hundred thousand Japanese Americans were confined to "relocation camps" throughout the United States during World War I. Despite Justice Hugo L. Black's assertion that all race-based legal classifications are "immediately suspect" and subject to the "most rigid scrutiny," the Supreme Court ruled in United States v. Korematsu, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), that the internment did not violate the Equal Protection Clause. Deferring to the combined war powers of the president and Congress, the Court said relocation of these U.S. citizens was a "military urgency" in the war against Japan, justified by concern over domestic espionage, sabotage, and subversion. Justices Owen J. Roberts, Frank Murphy, and Robert H. Jackson dissented, arguing that no evidence of disloyalty had been produced against any of the interned Japanese Americans. Korematsu stands as the only case in which the Supreme Court has upheld a racial classification under the strict scrutiny standard.

Affirmative action

Affirmative action, sometimes called benign discrimination because it is considered less harmful than other forms of discrimination, is represented by government programs created to remedy past discrimination against blacks, women, and members of other protected groups. These programs include special considerations given to minorities competing against the rest of society for jobs, promotions, and admission to colleges and universities. Opponents of affirmative action characterize it as reverse discrimination because it often excludes individuals with ostensibly superior credentials, solely on account of their race or gender.

The Supreme Court has vacillated over what level of scrutiny applies to affirmative action programs. In Regents of University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), in which there was no majority opinion, four justices applied heightened scrutiny in holding that a university may consider racial criteria as part of a competitive admission process, so long as it does not use fixed quotas. But in Richmond v. J. A. Croson Co., 488 U.S. 469 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), five justices applied strict scrutiny to invalidate an affirmative action program intended to increase the number of minority-owned businesses awarded city construction contracts.

It appears that a majority of justices now favor application of strict scrutiny to cases involving benign discrimination (not obvious or intentional). When the more stringent level of scrutiny has been applied in these cases, the Court has held that a general legislative desire to correct past injustices was not sufficiently compelling to warrant a racial preference for minorities. Instead, the Court has ruled, benign racial preferences will be tolerated under the Fourteenth Amendment only when the government can demonstrate that they are narrowly tailored to correct specific discriminatory practices by the government itself or by some private sector entity within its jurisdiction.

Classifications Based on Gender

The Supreme Court has established that gender classifications are subject to intermediate scrutiny. The seminal case in this area is Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), which involved an Oklahoma law permitting females between the ages of eighteen and twenty to purchase 3.2 percent beer, but restricting males from purchasing such beer until they reached age twenty-one. The state defended the statute by introducing traffic statistics that suggested that men were more likely than women to be arrested for drunk driving before age twenty-one. The Court agreed that enhanced traffic safety was an "important" government interest, but disagreed that the gender line drawn by the state would "substantially" serve this interest.

Alienage, State Residency, and Legitimacy Classifications

The Supreme Court has held that legislation discriminating against aliens who are properly within the United States is considered suspect, and will be upheld only if the classification is necessary to serve a compelling government interest. In at least one alienage case, however, the Court has applied only heightened scrutiny to invalidate a state law preventing undocumented children from enrolling in the Texas public school system (Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 [1982]). The Court continues to call classifications based on alienage suspect, but may not always apply the most rigorous scrutiny to such legislation.

State laws that condition government benefits on length of state residency have also been deemed suspect by the Supreme Court. In Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), the Court ruled that legislation denying government benefits to persons residing in a state for less than a year violated the Equal Protection Clause. Although states may restrict welfare, educational, and other government benefits to bona fide residents, the Court wrote, they may not restrict the dispensation of government benefits in a way that would unduly burden the right to interstate travel, or deprive interstate travelers of the right to be treated as equal to other state residents. Since Shapiro, the Supreme Court has occasionally applied more moderate scrutiny to legislation burdening interstate travelers, prompting critics to assail the Court for its inconsistent application of the three-tiered analysis.

State laws that discriminate against children born out of wedlock are subject to heightened scrutiny. State legislation has been struck down for denying illegitimate children inheritance rights, welfare benefits, and child support when such rights were offered to legitimate children. Although illegitimacy is not a suspect classification subject to strict scrutiny, courts do provide meaningful review of such statutes. The Supreme Court is sensitive to penalizing children for their extramarital status when the children themselves are not responsible for that status.

Classifications Involving Sexual Preference

In Romer v. Evans, ___U.S. ___, 116 S. Ct. 1620, L. Ed. 2d (1996), the U.S. Supreme Court reviewed a Colorado state constitutional amendment that prohibited any branch of the state or local governments from taking action designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation." The immediate effect of the amendment, known popularly as "Amendment 2," was to repeal all existing statutes, regulations, ordinances, and governmental policies that barred discrimination based on sexual preference. Under Amendment 2, state officials and private entities would have been permitted to discriminate against gays and lesbians in a number of areas, including insurance, employment, housing, and welfare services.

The state of Colorado defended Amendment 2 by arguing that it did nothing more than place homosexuals on a level playing field with all other state residents. The amendment, Colorado submitted, simply denied gays and lesbians any "special rights." The Supreme Court disagreed, holding that Amendment 2 violated the Equal Protection Clause because it "identifies persons by a single trait and then denies them protection across the board," which is something "unprecedented in our Jurisprudence."

Writing for a six-person majority, Justice Anthony Kennedy explained that "Equal Protection of the laws is not achieved through indiscriminate imposition of inequalities." The associate justice said that "[r]espect for this principle" demonstrates "why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare." Amendment 2 is unconstitutional, Kennedy concluded, because any law that generally makes it "more difficult for one group of citizens than all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense."

Classifications Involving Fundamental Rights

A fundamental right is a right expressly or implicitly enumerated by the U.S. Constitution. In Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), Justice Benjamin N. Cardozo wrote that these freedoms represent "the very essence of a scheme of ordered liberty … principles so rooted in the traditions and conscience of our people as to be ranked as fundamental." During the nation's first century, freedom of contract and various property rights were deemed fundamental. In the twentieth century, more personal liberties have been recognized as such. These freedoms include most of those explicitly contained in the Bill of Rights, such as freedom of speech, freedom of religion, freedom of assembly, right to counsel, right against unreasonable search and seizure, right against self-incrimination, right against double jeopardy, right to a jury trial, and right to be free from cruel and unusual punishment. They also include freedoms specifically mentioned elsewhere in the Constitution, such as the right to vote. In the late twentieth century, the Supreme Court began to find that fundamental rights embodied freedoms that were not expressly enumerated by the Constitution but that may be fairly inferred by one of its provisions, such as the rights to personal autonomy and privacy.

Relying on the doctrine of incorporation, the Supreme Court has made these fundamental constitutional principles applicable to the states through the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Court has concluded, in a series of decisions, that these freedoms are so important to the preservation of liberty that they must be equally conferred upon the citizens of every state. No state may provide its residents with less protection of these fundamental rights than is offered under the federal Constitution. The Fourteenth Amendment thus guarantees state citizens equal protection of the laws, by creating a minimum federal threshold of essential freedoms each state must recognize.

In Gideon v. Wainright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), Clarence Earl Gideon was charged with entering a poolroom with the intent to commit a misdemeanor. Before trial, Gideon, an indigent, asked the judge to appoint an attorney to represent him because he could not afford one. The court denied Gideon's request, and a jury later convicted him. Gideon's request for a court-appointed counsel in a misdemeanor case would have been denied in many states at that time. The Supreme Court held that all states must thereafter provide court-appointed counsel at every critical stage of a criminal proceeding, whether the proceeding concerned a misdemeanor, felony, or capital offense. The right to counsel is too fundamental for any state to ignore.

The year after Gideon was decided, the Supreme Court handed down another groundbreaking decision in the area of fundamental rights. Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), involved the dilution of voting rights through legislative apportionment in Alabama. Legislative apportionment refers to the manner in which a state, county, or municipality is divided for purposes of determining legislative representation. Some states are divided into voting precincts, whereas others are divided into wards or districts.

In Reynolds, the voting subdivisions were so unevenly apportioned that a distinct minority of Alabama voters were electing a majority of the state legislators. As a result, voters in less populated electoral subdivisions had more voting power than did voters in more populated electoral subdivisions. The Supreme Court struck down this arrangement under the Fourteenth Amendment, holding that every voter has a fundamental right to cast a ballot of equal weight. The Court had earlier applied this one-person, one-vote principle to federal congressional districts, requiring that all such districts be as nearly equal in population as practicable (Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 [1964]).

In addition to the Fourteenth Amendment of the U.S. Constitution, most state constitutions provide equal protection guarantees and enumerate certain fundamental rights. In many of the states with these constitutions, courts also employ a three-tiered analysis similar to that developed by the U.S. Supreme Court. State courts can interpret their own constitution to provide more, but not less, protection than that offered under the federal Equal Protection Clause.

Legislation

The Fourteenth Amendment authorizes Congress to enact "appropriate legislation" to enforce the Equal Protection Clause. The Commerce Clause provides Congress with the authority to enact legislation that affects interstate commerce, an even broader power. Pursuant to these clauses, Congress has enacted major pieces of legislation that have extended protection against discrimination beyond that contained in the Constitution.

The Civil Rights Act of 1871 (42 U.S.C.A. § 1983 et seq.) was one early piece of such legislation. Section 1983 of the act, passed when Ku Klux Klan violence was widespread, created a federal remedy, namely money damages, for individuals whose constitutional rights had been violated by state officials. Although this statute has been influential and frequently litigated, no relief will be granted under it unless " state action" can be demonstrated.

State action means a discriminatory act committed by a government official or agent. Such action may be taken by a legislative, executive, judicial, or administrative body, or some other person or entity acting under " color of law." Section 1983 does not apply to wholly private or nongovernment conduct. If action is taken by a private individual cloaked with some measure of state authority, courts will find state action if one of four tests is satisfied: (1) public function test — state action is found where the government has delegated its traditional responsibilities, such as police protection, to a private party or agency; (2) nexus test — state action is found where there is a sufficiently close connection between the government and a private actor, such as where the state owns or leases property on which private discrimination occurs; (3) state compulsion test — state action is found where the government coerces or significantly encourages private conduct, such as where federal regulations require private railways to conduct urinalysis after accidents; (4) joint action test — state action is found where the government is a willful participant in discrimination by a private actor.

Other congressional legislation prohibits discrimination in the private sector. Title VII of the 1964 Civil Rights Act prohibits employers from hiring or firing employees on the basis of race, color, sex, or national origin (42 U.S.C.A. § 2000e-2 et seq.). Federal courts have interpreted title VII to prohibit hostile work environments involving sexual harassment, even when the perpetrator and victim are the same gender. The Age Discrimination in Employment Act (29 U.S.C.A. § 623 et seq.) extends title VII's protections to employment decisions based on age and is applicable to persons between the ages of forty and seventy. Under both statutes, employers may defend their actions by demonstrating nondiscriminatory reasons for a particular decision, such as the dishonesty or incompetency of a discharged employee.

The Americans with Disabilities Act (ADA) (42 U.S.C.A. § 1211 et seq.) prohibits discrimination against "qualified individuals" based on a "physical or mental impairment that substantially limits one or more" of an individual's "major life activities." Title I of the ADA applies to employers, and requires them to make "reasonable accommodations" for disabled employees who are otherwise qualified to perform a job, unless such accommodations would cause undue hardship to the business. Such accommodations can include making existing facilities more accessible, permitting part-time or modified work schedules, and reassigning jobs.

Title II applies to public entities, including any department, agency, or other instrumentality of a state or local government. The ADA does not apply to the federal government, but other legislation does protect disabled federal employees. Title III of the ADA governs public accommodations such as restaurants, theaters, museums, stores, day care centers, and hospitals. The word disability includes terminal illnesses and prevents health care facilities from failing to treat patients diagnosed with AIDS or HIV.

Many state statutes also promote equal protection by prohibiting discrimination. Legislation from several states combines many of the federal protections under a single category of human rights law. Depending on the particular jurisdiction and issue at stake, state human rights legislation, and the court decisions interpreting it, may provide broader protection than that offered under similar federal laws.

The Common Law

The notion of equal protection or equal treatment is rooted in the Anglo-Saxon common law. When Henry II ascended the throne in 1154, England was divided into political subdivisions consisting of villages, hundreds, shires, and towns. The king, feudal lords, and local assemblies all wielded power to some extent. But there were no effective national executive, legislative, or judicial institutions that could administer laws in a uniform and organized manner. Henry II changed this condition by creating a royal common law, which his officials disseminated throughout the kingdom. Thus, the king's law was made "common" to citizens of the entire realm.

The idea of equality under the law is also rooted in the rule of law, and in the principle that no one is above the law, including the king and the members of Parliament. This principle found expression in Bonham's case, 8 Co. 107a, 77 Eng. Rep. 638 (K.B. 1608), where eminent English jurist Sir Edward Coke wrote that "the common law will … controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void."

In 1761, James Otis, an American colonist, relied on Coke in the Writs of Assistance Case, where he said that any act of Parliament "against the constitution is void" and that it was the duty of the courts to "pass such acts into disuse" because they contravened "the reason of the common law." In a recent application of this principle, President Richard M. Nixon lost his battle with the rule of law when the Supreme Court forced him to surrender the infamous Watergate tapes against his assertion of executive privilege (United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 [1974]).

Courts have also relied on the concept of equal treatment in explaining the common doctrine of stare decisis. When a court has laid down a principle of law in one case, stare decisis requires the court to apply that principle to future cases involving a similar set of facts. Some commentators have suggested that stare decisis serves two policy considerations: continuity and predictability in the law. But this doctrine also promotes equal treatment, federal courts have reasoned, by permitting all similarly situated litigants to obtain the same results under the law.

The American Revolution was sparked by the idea of equality. In 1776, the colonists declared themselves independent of the British Empire, in which the government often acted as if it were above the law. Jefferson and the other revolutionaries announced their steadfast adherence to the rule of law and the idea of human equality. But the idea of equality has always been ambiguous and controversial. U.S. citizens still disagree about whether the Equal Protection Clause of the Fourteenth Amendment guarantees equality of condition, equality of result, or equality of treatment and concern under the law. This disagreement manifests itself in state and federal courthouses and the halls of Congress.

See: Acquired Immune Deficiency Syndrome; Age Discrimination; Baker v. Carr; Brown v. Board of Education of Topeka, Kansas; Civil Rights Acts; Civil Rights Cases; Disabled Persons; Dred Scott v. Sandford; Gay and Lesbian Rights; Gideon v. Wainwright; Japanese American Evacuation Cases; Jim Crow Laws; Korematsu v. United States; Ku Klux Klan Act; Plessy v. Ferguson; Regents of University of California v. Bakke; Reynolds v. Sims; Right to Counsel; School Desegregation; Slaughter-House Cases; United States v. Nixon; Voting Rights Act of 1965; Writs of Assistance Case.

“	No state shall ... deny to any person within its jurisdiction the equal protection of the laws.	”

Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause.

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws".^[1] The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal"^[2] by empowering the judiciary to enforce that principle against the states.

More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgment by state leaders and governments, even including some rights that arguably were not protected from abridgment by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate, and the story of the Equal Protection Clause is the gradual explication of its meaning.

One of the main limitations in the Equal Protection Clause is that it limits only the powers of government bodies, and not the private parties on whom it confers equal protection. This limitation has existed since 1883 and has not been overturned. However, since the 1960s, Congress has passed most civil rights legislation under its Commerce Clause power.

Contents 1 Background 2 Reconstruction-era interpretation and the Plessy decision 3 Between Plessy and Brown 4 Brown and its consequences 5 Carolene Products and the various levels of Equal Protection scrutiny 6 Discriminatory intent or disparate impact? 7 Suspect classes 8 Affirmative action 9 The Equal Protection Clause and voting 10 See also 11 References

Background

The words inscribed above the entrance to the U.S. Supreme Court are: "Equal justice under law."

The Fourteenth Amendment was enacted in 1868, shortly after the Union victory in the American Civil War. After the Thirteenth Amendment, which was proposed by Congress and ratified by the states in 1865, had abolished slavery, many ex-Confederate states adopted Black Codes following the war.

These laws severely restricted the power of blacks to hold property and form legally enforceable contracts. They also created harsher criminal penalties for blacks than for whites.^[3]

In response to the Black Codes, Congress enacted the Civil Rights Act of 1866, which provided that all those born in the United States were citizens of the United States (this provision was meant to overturn the Supreme Court's decision in Dred Scott v. Sandford), and required that "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."^[4] Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment. The effort was led by the Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens. The most important among these, however, was Bingham, a Congressman from Ohio, who drafted the language of the Equal Protection Clause.

The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the … Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated, to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.^[5]

By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing the same restrictions on the federal government.

Reconstruction-era interpretation and the Plessy decision

The Court that decided Plessy

The first truly landmark equal protection decision by the Supreme Court was Strauder v. West Virginia (1880), soon after the end of Reconstruction. A black man convicted of murder by an all-white jury challenged a West Virginia statute excluding blacks from serving on juries. The Court asserted that the purpose of the Clause was

to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.

Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of [the defendant's] race."

The next important postwar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other places of public amusement." In its opinion, the Court promulgated what has since become known as the "state action doctrine," which limits the guarantees of the equal protection clause only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong," provided, of course, that the state's law saw it as a wrong. Justice John Marshall Harlan dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism."

Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment," and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state.

A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins (1886).^[6] He said: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." Thus, the Clause would not be limited to discrimination against African Americans, nor would it be limited to equal enforcement of existing laws.

In its most contentious post-war interpretation of the equal protection clause, Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana Jim Crow law that required the segregation of blacks and whites on railroads and mandated separate railway cars for members of the two races.^[7] The Court, speaking through Justice Henry B. Brown, ruled that the equal protection clause had been intended to defend equality in civil rights, not equality in social arrangements. All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people."

Justice Harlan again dissented. "Every one knows," he wrote,

that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons .... [I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."^[8]

Since Brown v. Board of Education (1954), Justice Harlan's dissent in Plessy has been vindicated as a matter of legal doctrine, and the clause has been interpreted as imposing a general restraint on the government's power to discriminate against people based on their membership in certain classes, including those based on race and sex (see below).

It was also in the post-Civil-War era that the Supreme Court first decided that corporations were "persons" within the meaning of the equal protection clause.^[9] However, the legal concept of corporate personhood predates the Fourteenth Amendment.^[10] In the late nineteenth and early twentieth centuries, the Clause was used to strike down numerous statutes applying to corporations. Since the New Deal, however, such invalidations have been rare.^[11]

Between Plessy and Brown

While the Plessy majority's interpretation of the clause stood until Brown, the holding of Brown was prefigured, to some extent, by several earlier cases.

The first of these was Missouri ex rel. Gaines v. Canada (1938). Lloyd Gaines was a black student at Lincoln University of Missouri, one of the historically black colleges in Missouri. He applied for admission to the law school at the all-white University of Missouri, since Lincoln did not have a law school, but was denied admission due solely to his race. The Supreme Court, applying the separate-but-equal principle of Plessy, held that a State offering a legal education to whites but not to blacks violated the Equal Protection Clause.

Smith v. Allwright (1944) and Shelley v. Kraemer (1948), though not dealing with education, indicated the Court's increased willingness to find racial discrimination illegal. Smith declared that the Democratic primary in Texas, in which voting was restricted to whites alone, was unconstitutional, partly on equal protection grounds. Shelley concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could: after all, the Supreme Court reasoned, courts were part of the state.

More important, however, were the companion cases Sweatt v. Painter and McLaurin v. Oklahoma State Regents, both decided in 1950. In McLaurin, the University of Oklahoma had admitted McLaurin, an African-American, but had restricted his activities there: he had to sit apart from the rest of the students in the classrooms and library, and could eat in the cafeteria only at a designated table. A unanimous Court, through Chief Justice Fred M. Vinson, said that Oklahoma had deprived McLaurin of the equal protection of the laws:

There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.

The present situation, Vinson said, was the former.

In Sweatt, the Court considered the constitutionality of Texas's state system of law schools, which educated blacks and whites at separate institutions. The Court (again through Chief Justice Vinson, and again with no dissenters) invalidated the school system—not because it separated students, but rather because the separate facilities were not equal. They lacked "substantial equality in the educational opportunities" offered to their students.

All of these cases, including Brown, were litigated by the National Association for the Advancement of Colored People. It was Charles Hamilton Houston, a Harvard Law School graduate and a law professor at Howard University, who in the 1930s first began to challenge racial discrimination in the federal courts. Thurgood Marshall, a former student of Houston's and the future Solicitor General and Associate Justice of the Supreme Court, joined him. Both men were extraordinarily skilled appellate advocates, but part of their shrewdness lay in their careful choice of which cases to litigate—of which situations would be the best legal proving grounds for their cause.^[12]

Brown and its consequences

When Earl Warren became Chief Justice in 1953, Brown had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional.^[13] In that opinion, Warren wrote:

To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone…. We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

The Court then set the case for re-argument on the question of what the solution would be. In Brown II, decided the next year, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be so as well. Thus the court devolved authority to local school boards and to the trial courts that had originally heard the cases. (Brown was actually a consolidation of four different cases from four different states.) The trial courts and localities were told to desegregate with "all deliberate speed".

Partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance" in the South to the desegregation decision, integration did not begin in any significant way until the mid-1960s and then only to a small degree. In fact, much of the integration in the 1960s happened in response not to Brown but to the Civil Rights Act of 1964. The Supreme Court intervened a handful of times in the late 1950s and early 1960s, but its next major desegregation decision was Green v. School Board of New Kent County (1968), in which Justice William J. Brennan, writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. This was a significant act; freedom-of-choice plans had been very common responses to Brown. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks rarely attended white-identified schools.

In response to Green, many Southern districts replaced freedom-of-choice with geographically based schooling plans; but because residential segregation was widespread, this had little effect, either. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of Education approved busing as a remedy to segregation; three years later, though, in the case of Milliken v. Bradley (1974), it set aside a lower court order that had required the busing of students between districts, instead of merely within a district. Milliken basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the '50s and '60s.^[14] American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, to Congressional action or to societal change, the percentage of black students attending school districts a majority of whose students were black decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.^[15]

There are, very broadly speaking, two ways to explain America's marked lack of success in school integration in the five decades since Brown. One way, sometimes voiced by political conservatives, argues that Brown's relative failure is due to the inherent limitations of law and the courts, which simply do not have the institutional competence to supervise the desegregation of whole school districts. Moreover, the federal government's, and especially the Supreme Court's, hubris actually provoked the resistance of locals, since education in the United States is traditionally a matter for local control. The other way to explain what has happened since Brown often has political liberals as its proponents; it argues that the Court's decree in Brown II was insufficiently rigorous to force segregated localities into action, and that real success began only after the other two branches of the federal government got involved—the Executive Branch (under Kennedy and Johnson) by encouraging the Department of Justice to pursue judicial remedies against resistant school districts, and Congress by passing the Civil Rights Act of 1964 and the Civil Rights Act of 1968.^[16] Liberals also point out that Richard Nixon's "southern strategy" was premised on a tacit support of segregation that continued when Nixon came to office, so that after 1968 the Executive was no longer behind the Court's constitutional commitments.^[17] Moreover, some, such as Erwin Chemerinsky, argue that courts may have had sufficient ability to ensure widespread integration but simply were not allowed enough time to perform this role, since Milliken v. Bradley, in 1974—barely a decade since desegregation began in earnest in the South—severely curtained the thoroughgoing methods (e.g. busing) which might have achieved the goal of desegregation.

Carolene Products and the various levels of Equal Protection scrutiny

Harlan Stone, author of the Carolene Products opinion

Despite the undoubted importance of Brown, much of modern equal protection jurisprudence stems from footnote four of United States v. Carolene Products Co. (1938), a Commerce Clause and substantive due process case. In 1937, the Court (in what was called the "switch in time that saved nine") had loosened its rules for deciding whether Congress could regulate certain commercial activities. In discussing the new presumption of constitutionality that the Court would apply to economic legislation, Justice Harlan Stone wrote:

[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.^[18]

Thus were born the "more searching" levels of scrutiny—"strict" and "intermediate"—with which the Court would examine legislation directed at racial minorities and women respectively. Although the Court first articulated a "strict scrutiny" standard for laws based on race-based distinctions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944), the Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia. Intermediate scrutiny did not command the approbation of a majority of the Court until the 1976 case of Craig v. Boren.

The Supreme Court has defined these levels of scrutiny in the following way:

• Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
• Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest^[19].
• Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.

Although in 1985 the court in City of Cleburne v. Cleburne Living Center, Inc. held mentally retarded persons were deemed to be subject to a "rational basis" test, in invalidating seemingly rational zoning laws and land use restrictions, many assert that the court introduced an "enhanced" rational basis test that required the state to show more than a facially valid law and instead to balance the community's needs against the needs of the disabled.^[20]

There is, arguably, a fourth level of scrutiny for equal protection cases. In United States v. Virginia Justice Ruth Bader Ginsburg, writing for the Court, eschewed the traditional language of intermediate scrutiny for sex-based discrimination and instead demanded that litigants articulate an "exceedingly persuasive" argument to justify this kind of discrimination. Whether this was simply a restatement of the doctrine of intermediate scrutiny or whether it created a new level of scrutiny between the intermediate and strict standards is unclear.

Discriminatory intent or disparate impact?

After Brown, questions still remained about the scope of the equal protection clause. Does the Clause outlaw public policies that cause racial disparities—for example, a public school examination that has not been established for racist reasons, but that more white students than black students pass? Or, on the other hand, does it only outlaw intentional bigotry?

The Supreme Court has answered that the equal protection clause itself does not forbid policies which lead to racial disparities, but that Congress may by legislation prohibit such policies.

Take, for example, Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion. Title VII applies both to private and to public employers. (While Congress applied Title VII to private employers using its interstate commerce power, it applied Title VII to public employers under its power to enforce the Fourteenth Amendment. Title VII's standards for public and private employers are the same.) The Supreme Court ruled in Griggs v. Duke Power Co. (1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII. In the years since Griggs, courts have defined "business necessity" as requiring the employer to prove that whatever is causing the racial disparity—be it a test, an educational requirement, or another hiring practice—has a demonstrable factual relationship to making the company more profitable.^[21]

In situations involving only the equal protection clause, however, the focus of the court is on discriminatory intent. Such intent was manifested in the seminal case of Arlington Heights v. Metropolitan Housing Corp. (1977). In that case, the plaintiff, a housing developer, sued a city in the suburb of Chicago that had refused to re-zone a plot of land on which the plaintiff intended to build low-income, racially integrated housing. On the face, there was no clear evidence of racially discriminatory intent on the part of Arlington Heights's planning commission. The result was racially disparate, however, since the refusal supposedly prevented mostly African-Americans and Hispanics from moving in. Justice Lewis Powell, writing for the Court, stated, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Disparate impact merely has an evidentiary value; absent a "stark" pattern, "impact is not determinative." (See also Washington v. Davis (1976).)

Defenders of the rule in Arlington Heights and Washington v. Davis argue that the equal protection clause was not designed to guarantee equal outcomes, but rather equal opportunities and that therefore one should not be concerned with trying to fix every racially disparate effect. One should worry only about intentional discrimination. Others point out that the courts are merely enforcing the equal protection clause, and that if the legislature wants to correct racially disparate effects, it may do so through further legislation.^[22]

Critics contend, on the other hand, that the rule would excuse many instances of racial discrimination, since it is possible for a discriminating party to hide its true intention. To uncover the motives of the parties, the court should also consider whether the measure at issue would have disparate impact, critics argue.^[23] This debate, though, goes on almost entirely in the academy, since the Supreme Court has not changed its basic approach as outlined in Arlington Heights.

For a prime example of how this rule limits the Court's powers under the Equal Protection Clause see McClesky v. Kemp. In that case a black man was convicted of murdering a white police officer and sentenced to death in the state of Georgia. A law professor, David Baldus, performed a study and found that killers of whites were more likely to be sentenced to death than were killers of blacks. The Court found that the defense had failed to prove that such data demonstrated the requisite discriminatory intent by the Georgia legislature and executive branch. McCleskey's argument could not have been helped by the fact that the Baldus study indicated that white defendants in Georgia were actually more likely than black defendants to receive the death penalty, because of the tendency of white killers to choose white victims.

Suspect classes

The Supreme Court has seemed unwilling to extend full "suspect class" status (i.e., status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) to groups other than racial minorities and religious groups. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class. Many commentators have noted, however—and Justice Marshall so notes in his partial concurrence—that the Court does appear to examine the City of Cleburne's denial of a permit to a group home for mentally retarded people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.^[24]

In Lawrence v. Texas (2003), the Court struck down a Texas statute prohibiting homosexual sodomy on substantive due process grounds. In Justice Sandra Day O'Connor's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne.

Notably, O'Connor did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation. Much as in City of Cleburne, though, the Court's decision in Romer v. Evans (1996), on which O'Connor also relied in her Lawrence opinion, and which struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination," seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.^[25] While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.^[26]

The court has also refused to view government discrimination based on a citizen's political belief or affiliation to be a suspect class.

Affirmative action

Affirmative action is the policy of consciously setting racial, ethnic, religious, or other kinds of diversity as a goal within an organization. In order to meet this goal, an organization may purposely select people from certain groups that are underrepresented, or have historically been oppressed or denied equal opportunities. In that application of affirmative action, individuals of one or more of these minority backgrounds are preferred—ceteris paribus—over those who do not have such characteristics; such a preferential scheme is sometimes effected through quotas, though this need not necessarily be so.

Although there were forms of what is now called affirmative action during the Reconstruction (most of which were implemented by the same persons who framed the Fourteenth Amendment^[27]) the modern history of affirmative action began with the Kennedy administration and started to flourish during the Johnson administration, with the Civil Rights Act of 1964 and two Executive Orders. These policies directed agencies of the federal government to employ a proportionate number of minorities whenever possible.^[28]

Several important affirmative action cases to reach the Supreme Court have concerned government contractors—for instance, Adarand Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co. (1989). But the most famous cases have dealt with affirmative action as practiced by public universities: Regents of the University of California v. Bakke (1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger and Gratz v. Bollinger.

In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan law school. In dicta, however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In Gratz, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race not as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.

In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice Clarence Thomas in his dissent to Grutter—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one.^[29] On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.^[30]

The Equal Protection Clause and voting

Although the Supreme Court had ruled in Nixon v. Herndon (1927) that the Fourteenth Amendment prohibited denial of the vote based on race, the first modern application of the Equal Protection Clause to voting law came in Baker v. Carr (1962), where the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause. This ruling was extended two years later in Reynolds v. Sims (1964), in which a "one man, one vote" standard was laid down: in both houses of state legislatures, each resident had to be given equal weight in representation.

It may seem counterintuitive that the equal protection clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment and the Nineteenth Amendment redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan (the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights, and in reference to the Fifteenth and Nineteenth Amendments, he said:

If constitutional amendment was the only means by which all men and, later, women, could be guaranteed the right to vote at all, even for federal officers, how can it be that the far less obvious right to a particular kind of apportionment of state legislatures ... can be conferred by judicial construction of the Fourteenth Amendment? [Emphasis in the original.]

However, Reynolds and Baker do not lack a rationale, if seen from another perspective. The Supreme Court has repeatedly stated that voting is a "fundamental right" on the same plane as marriage (Loving v. Virginia), privacy (Griswold v. Connecticut (1965)), or interstate travel (Shapiro v. Thompson (1969)). For any abridgment of those rights to be constitutional, the Court has held, the legislation must pass strict scrutiny.^[31] Thus, on this account, equal protection jurisprudence may be appropriately applied to voting rights.

A recent use of equal protection doctrine came in Bush v. Gore (2000). At issue was the controversial recount in Florida in the aftermath of the 2000 presidential election. There, the Supreme Court decided that the different standards of counting ballots across Florida violated the equal protection clause. It was not this decision that proved especially controversial among commentators, and indeed, the proposition gained seven out of nine votes; Justices Souter and Breyer joined the majority of five—but only, it should be emphasized, for the finding that there was an Equal Protection violation. What was controversial was, first, the remedy upon which the majority agreed—that even though there was an equal protection violation, there was not enough time for a recount—and second, the suggestion that the equal protection violation was true only on the facts of Bush v. Gore; commentators suggested that this meant that the Court did not wish its decision to have any precedential effect, and that this was evidence of its unprincipled decision-making.^[32]

See also

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References

1. ^ U.S. Constitution, Amendment 14
2. ^ U.S. Declaration of Independence
3. ^ For details on the rationale for, and ratification of, the Fourteenth Amendment, see generally Foner, Eric (1988). Reconstruction: America's Unfinished Revolution, 1863—1877. New York: Harper & Row. ISBN 006091453X. , as well as Brest, Paul; et al. (2000). Processes of Constitutional Decisionmaking. Gaithersburg: Aspen Law & Business. pp. 241–242. ISBN 0735512507. 
4. ^ See Brest et al. (2000), pp. 242–46.
5. ^ See Foner (1988), passim. See also Ackerman, Bruce A. (2000). We the People, Volume 2: Transformations. Cambridge: Belknap Press. pp. 99–252. ISBN 0674003977. 
6. ^ Yick Wo v. Hopkins, 118 U.S. 356 (1886).
7. ^ For a summary of the social, political and historical background to Plessy, see Woodward, C. Vann (2001). The Strange Career of Jim Crow. New York: Oxford University Press. pp. 6 and pp. 69–70. ISBN 0195146905. 
8. ^ For a skeptical evaluation of Harlan, see Chin, Gabriel J. (1996). "The Plessy Myth: Justice Harlan and the Chinese Cases". Iowa Law Review 82: 151. ISSN 00210552. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121505. 
9. ^ See Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). The Court declared that it did not need to hear argument on whether the Equal Protection Clause protected corporations, because "we are all of the opinion that it does." Id. at 396.
10. ^ See Providence Bank v. Billings, 29 U.S. 514 (1830), in which Chief Justice Marshall wrote: “The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men.” Nevertheless, the concept of corporate personhood remains controversial. See Mayer, Carl J. (1990). "Personalizing the Impersonal: Corporations and the Bill of Rights". Hastings Law Journal 41: 577. ISSN 00178322. http://reclaimdemocracy.org/personhood/mayer_personalizing.html. 
11. ^ See Currie, David P. (1987). "The Constitution in the Supreme Court: The New Deal, 1931–1940". University of Chicago Law Review 54: 504, 547. doi:10.2307/1599798. 
12. ^ See generally Morris, Aldon D. (1986). Origin of the Civil Rights Movements: Black Communities Organizing for Change. New York: Free Press. ISBN 0029221307. 
13. ^ For an exhaustive history of the Brown case from start to finish, see Kluger, Richard (1977). Simple Justice. New York: Vintage. ISBN 0394722558. 
14. ^ For a comprehensive history of school desegregation from Brown through Milliken (one on which this article relies for its assertions), see Brest et al. (2000), pp. 768–794.
15. ^ For data and analysis, see Orfield (July 2001). "Schools More Separate" (PDF). Harvard University Civil Rights Project. http://www.civilrightsproject.harvard.edu/research/deseg/Schools_More_Separate.pdf. Retrieved 2008-07-16. 
16. ^ It is important to note that the Civil Rights Acts of 1964 and 1968 were enacted under both the Commerce Clause and section five of the Fourteenth Amendment. Insofar as those Acts regulate "private" conduct under the rubric laid down by the Civil Rights Cases, the Acts were passed by Congress under its Commerce Clause powers. The Supreme Court unanimously deemed the Civil Rights Act of 1964 constitutional under the Commerce Clause in Katzenbach v. McClung, 379 U.S. 294 (1964) and Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). In Fitzpatrick v. Bitzer (1976), the Supreme Court held that Title VII of the Civil Rights Act of 1964 validly applied to public employers.
17. ^ For the history of the political branches' engagement with the Supreme Court's commitment to desegregation (and vice versa), see Powe, Lucas A., Jr. (2001). The Warren Court and American Politics. Cambridge, MA: Belknap Press. ISBN 0674006836. , and Kotz, Nick (2004). Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws That Changed America. Boston: Houghton Mifflin. ISBN 0618088253.  For more on the debate summarized in the text, see, e.g., Rosenberg, Gerald N. (1993). The Hollow Hope: Can Courts Bring About Social Change?. Chicago: University of Chicago Press. ISBN 0226727033. , and Klarman, Michael J. (1994). "Brown, Racial Change, and the Civil Rights Movement". Virginia Law Review 80: 7. doi:10.2307/1073592. 
18. ^ 304 U.S. 144, 152 n.4 (1938). For a theory of judicial review based on Stone's footnote, see Ely, John Hart (1981). Democracy and Distrust. Cambridge, MA: Harvard University Press. ISBN 0674196376. 
19. ^ In past decisions "sex" generally has meant the male/female distinction, not sexual intercourse.
20. ^ "Disability Rights - ACLU Position/Briefing Paper". American Civil Liberties Union. 1999-01-01. http://www.aclu.org/disability/gen/10648pub19990101.html. 
21. ^ Title VII of the Civil Rights Act of 1964 is applied to private employers such as Griggs Power through Congress's Commerce Clause power, not through the Fourteenth Amendment. (This is, of course, consistent with the state action doctrine articulated in the Civil Rights Cases.) However, Title VII also applies to public employers, and the Supreme Court has consistently applied the same disparate impact doctrine to both private and public employers. Compare Griggs with Dothard v. Rawlinson, 433 U.S. 321 (1977), a Title VII suit against the Alabama prison system.
22. ^ For this point, see Herzog, Don (March 22, 2005). "Constitutional Rights: Two". Left2Right. http://left2right.typepad.com/main/2005/03/constitutional__1.html.  Note, however, that the Court as of late has put significant limits on the congressional power of enforcement. See City of Boerne v. Flores, Board of Trustees of the University of Alabama v. Garrett, and United States v. Morrison.
23. ^ Contrast the Court's opinions in Arlington Heights and Washington v. Davis with, for example, Krieger, Linda Hamilton (1995). "The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Protection Opportunity". Stanford Law Review 47: 1161. doi:10.2307/1229191. , and Lawrence, Charles R., III (1987). "Reckoning with Unconscious Racism". Stanford Law Review 39: 317. doi:10.2307/1228797. 
24. ^ See Pettinga, Gayle Lynn (1987). "Rational Basis with Bite: Intermediate Scrutiny by Any Other Name". Indiana Law Journal 62: 779. ISSN 00196665. ; Wadhwani, Neelum J. (2006). "Rational Reviews, Irrational Results". Texas Law Review 84: 801, 809–811. ISSN 00404411. 
25. ^ Joslin, Courtney (1997). "Equal Protection and Anti-Gay Legislation". Harvard Civil Rights-Civil Liberties Law Review 32: 225, 240. ISSN 0017-8039. "The Romer Court applied a more ‘active,’ Cleburne-like rational basis standard… .". ; Farrell, Robert C. (1999). "Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans". Indiana Law Review 32: 357. ISSN 00196665. 
26. ^ See Koppelman, Andrew (1994). "Why Discrimination against Lesbians and Gay Men is Sex Discrimination". New York University Law Review 69: 197. ISSN 00287881. 
27. ^ See Schnapper, Eric (1985). "Affirmative Action and the Legislative History of the Fourteenth Amendment". Virginia Law Review 71: 753. doi:10.2307/1073012. 
28. ^ See this subsection in the Wikipedia article on affirmative action.
29. ^ See Schuck, Peter H. (September 5, 2003). "Reflections on Grutter". Jurist. http://jurist.law.pitt.edu/forum/symposium-aa/schuck.php. 
30. ^ See Siegel, Reva B. (2004). "Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown". Harvard Law Review 117: 1470. doi:10.2307/4093259. ; Carter, Stephen L. (1988). "When Victims Happen to Be Black". Yale Law Journal 97: 420–447. doi:10.2307/796412. 
31. ^ The rights to privacy and to interstate travel are part of the Supreme Court's substantive due process jurisprudence, and therefore are not derived from the equal protection clause; rather, the Court imported the standard of strict scrutiny from equal protection jurisprudence into substantive due process jurisprudence. This "importation" is further complicated by the fact that some cases, such as Loving v. Virginia, actually combine Equal Protection issues with substantive due process issues. The right to vote, however, seems to be an exception to the foregoing, in that the substantive right to vote appears to derive not from the Due Process Clause but from the Equal Protection Clause. (See the dicta and concurring opinions in the landmark case of San Antonio Independent School District v. Rodriguez.)
32. ^ For the criticisms seen here, as well as several defenses of the Court's decision, see Bush v. Gore: The Question of Legitimacy, edited by Ackerman, Bruce A. (2002). Bush v. Gore : the question of legitimacy. New Haven: Yale University Press. ISBN 0300093799.  Another much-cited collection of essays is Sunstein, Cass; Epstein, Richard (2001). The Vote: Bush, Gore, and the Supreme Court. Chicago: Chicago University Press. ISBN 0226213072. 

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