Suspect classification

In American jurisprudence, a suspect classification is any classification of groups meeting a series of criteria suggesting they are likely the subject of discrimination. These classes receive closer scrutiny by courts when an Equal Protection claim alleging unconstitutional discrimination is asserted against a law.

Strict scrutiny is applied to regulations that affect groups that fall under a "suspect classification." To be considered a suspect classification in the United States, the statute at issue must target:

1. a "discrete" or "insular" minority^[1] who
2. possess an immutable trait,
3. share a history of discrimination, and
4. are powerless to protect themselves via the political process.

The Supreme Court has additionally recognized national origin and religion as suspect classes and correspondingly analyzes any statutes discriminating against these classes under strict scrutiny.^[2]

Intermediate scrutiny is applied to groups that fall under a "quasi-suspect classification." Quasi-suspect class, with its intermediate scrutiny, is typically reserved for government sponsored discrimination on the basis of sex or legitimacy.

Rational basis scrutiny is applied to all other discriminatory statutes. Rational basis scrutiny covers all other discriminatory criteria—e.g., age, disability, political preference, political affiliation, or sexual orientation, except for California, Connecticut, Massachusetts, Vermont, Hawaii, Iowa and Colorado where sexual orientation is a suspect class.^[3]

Strict Scrutiny

The practical result of this legal doctrine is that government sponsored discrimination on the account of a citizen's race, skin color, ethnic or national origin or religion is almost always unconstitutional, unless it is a legitimate, narrowly tailored and temporary piece of legislation dealing with national security, defense, or affirmative action.

Alienage is a unique class, in that the class of illegal aliens is analyzed under intermediate scrutiny while the class of legal aliens is analyzed under strict scrutiny. Further, because the United States Congress has the power to regulate immigration, federal statutes which discriminate on alienage are only afforded rational basis scrutiny. State statutes are analyzed according to the above distinction.

Intermediate Scrutiny

When intermediate scrutiny is involved, the courts are more likely to uphold the discriminatory law, particularly if it is based on real, fact-based, biological differences between the sexes, as opposed to sex-based stereotypes.

Rational Basis

When rational basis review is used, the government is, essentially, being given broad authority to enact discriminatory laws against that particular class, e.g. criminals. Yet the U.S. Supreme Court used rational basis review to strike down an anti-gay law in Romer v. Evans,^[4] and did so again in Lawrence v. Texas.^[5]

Federal vs. State

The Supreme Court's holdings impose a minimum standard to which each State must adhere. Hence, a State law that discriminates against citizens because of their race, must be reviewed by the applicable State and inferior federal courts using the strict scrutiny basis of review. A State may, generally, choose to give its citizens more rights or protections than the minimum federal standard. For example, in 2008 the Supreme Court of California used the strict scrutiny basis of review to strike down a California statute denying legal recognition of same-sex marriages.

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