Suspect Classification

The Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment prohibit federal and state governments from engaging in certain forms of discriminatory behavior. Not all government discrimination is unconstitutional, however. It is legitimate for the law to treat individuals differently if such classification is reasonable and designed to accomplish a compelling government interest. A state, for example, may discriminate on the basis of age in treating youthful and adult offenders differently even if they have committed the same illegal act. The Constitution only prohibits discrimination that is invidious, arbitrary, or irrational. The validity of the government action depends largely on the criterion on which the discrimination is based.

The Supreme Court has determined certain classifications to be constitutionally suspect. Discrimination based on any characteristic that the Court has declared suspect is presumed to be irrational and constitutionally invalid. When such discrimination is constitutionally challenged, the courts proceed with strict scrutiny and the government carries a difficult burden of proof to justify the legitimacy of its actions. The Supreme Court, for example, has declared race and religion suspect. Therefore, government discrimination against racial minorities or religious groups is unlikely to be upheld. The Court has occasionally conferred suspect class status on other characteristics, such as poverty and illegitimacy, especially when the discrimination has impinged on the exercise of fundamental rights (see Indigency; Inheritance and Illegitimacy). Women's groups have long fought to have gender elevated to a suspect class, but the Supreme Court has yet to endorse that position.

— Thomas G. Walker

The equal protection clause of the 14th Amendment and the due process clause of the 5th Amendment restrict state and federal governments from discriminating against individuals. Not all discrimination by the government, however, is unconstitutional. The law may treat classes of individuals differently if it is reasonable to do so and there is a compelling government interest. A state government may, for example, discriminate on the basis of age in determining who is eligible to obtain a driver's license because such discrimination is reasonable and serves the compelling government interest of promoting public safety.

Suspect classifications, by contrast, are assumed to be unreasonable and cannot be justified as necessary to achieve a compelling government interest. Government discrimination against suspect classifications of individuals has been judged by the Supreme Court to be unconstitutional. It considers both race and religion to be suspect classifications; therefore, any government discrimination against racial or religious groups is unlikely to be upheld. When discrimination involving suspect classifications is challenged in court, the government has the very difficult, if not impossible, task of demonstrating that the discrimination is necessary to achieve a compelling state interest. This heavy burden of proof is known as the test of strict scrutiny.

In contrast to the ordinary scrutiny of the Court, strict scrutiny is undertaken on the assumption that the challenged government act is unconstitutional. Only in very few cases has a challenged government act passed the test of strict scrutiny.

A presumptively unconstitutional distinction made between individuals on the basis of race, national origin, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy.

The U.S. Supreme Court has held that certain kinds of government discrimination are inherently suspect and must be subjected to strict judicial scrutiny. The suspect classification doctrine has its constitutional basis in the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment, and it applies to actions taken by federal and state governments. When a suspect classification is at issue, the government has the burden of proving that the challenged policy is constitutional.

The concept of suspect classifications was first discussed by the Supreme Court in Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944). The Court upheld the "relocation" of Japanese Americans living on the West Coast during World War II, yet Justice Hugo L. Black, in his majority opinion, stated that

all legal restrictions which curtail the civil rights of a single group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

Though it is now widely recognized that no compelling justification existed for the relocation order and that racial prejudice rather than national security led to the forced removal of Japanese Americans, Korematsu did signal the Court's willingness to apply the Equal Protection Clause to suspect classifications.

Strict scrutiny of a suspect classification reverses the ordinary presumption of constitutionality, with the government carrying the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result. Although strict scrutiny is not a precise test, it is far more stringent than the traditional rational basis test, which only requires the government to offer a reasonable ground for the legislation.

Race is the clearest example of a suspect classification. For example, the Supreme Court in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 198 L. Ed. 2d 1010 (1967), scrutinized a Virginia statute that prohibited interracial marriages. The Court noted that race was the basis for the classification and that it was, therefore, suspect. The Court struck down the law because Virginia failed to prove a compelling state interest in preventing interracial marriages. Legislation discriminating on the basis of religion or ethnicity, as well as those statutes that affect fundamental rights, also are inherently suspect. The Supreme Court has not recognized age and gender as suspect classifications, though some lower courts treat gender as a suspect or quasi-suspect classification.

See: Equal Protection; Japanese American Evacuation Cases; Korematsu v. United States.