Equal Protection Clause of the Fourteenth Amendment
The promise that every person stands equal before the law is the moral heart of the American Constitution. The Equal Protection Clause of the Fourteenth Amendment, ratified in 1868 in the aftermath of the Civil War, represents the nation’s most profound commitment to this ideal. It provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” These seventeen words have been the foundation of some of the most important and controversial decisions in Supreme Court history, from school desegregation to marriage equality.
The Equal Protection Clause was originally designed to protect newly freed slaves from discriminatory state laws. The Supreme Court’s early interpretations of the clause, however, severely limited its reach. In the Slaughter-House Cases (1873), the Court narrowly construed the Privileges or Immunities Clause of the Fourteenth Amendment, and in Plessy v. Ferguson (1896), the Court upheld racial segregation under the “separate but equal” doctrine. It would take more than half a century before the Equal Protection Clause began to realize its transformative potential.
The Modern Equal Protection Framework
Modern equal protection analysis centers on the level of scrutiny that courts apply to government classifications. The Supreme Court has developed a tiered framework that assigns different levels of deference to different types of classifications, based on the characteristics of the affected group and the nature of the right at stake.
Strict Scrutiny
Classifications based on race, national origin, and alienage receive strict scrutiny, the most demanding standard of judicial review. Under strict scrutiny, the government must demonstrate that the classification serves a compelling governmental interest and is narrowly tailored to achieve that interest. Most laws subject to strict scrutiny are struck down, though not all.
The application of strict scrutiny to racial classifications was established in Korematsu v. United States (1944), where the Court nevertheless upheld the internment of Japanese Americans during World War II — a decision that has been universally condemned and effectively overruled. In Brown v. Board of Education (1954), the Court applied what would later be recognized as strict scrutiny to strike down school segregation, holding that “separate educational facilities are inherently unequal.”
Intermediate Scrutiny
Classifications based on gender and illegitimacy receive intermediate scrutiny. Under this standard, the government must demonstrate that the classification serves an important governmental interest and is substantially related to the achievement of that interest. The Court adopted intermediate scrutiny for gender classifications in Craig v. Boren (1976), and while many gender-based laws have been struck down, some survive — particularly those that compensate for historical discrimination.
The Court has also applied intermediate scrutiny to classifications based on illegitimacy, though the standard has been applied inconsistently. In Clark v. Jeter (1988), the Court held that illegitimacy classifications must be substantially related to an important governmental interest.
Rational Basis Review
Most government classifications receive only rational basis review, the most deferential standard. Under rational basis review, the classification will be upheld if it is rationally related to a legitimate governmental interest. This standard is extremely forgiving, and the party challenging the law bears the burden of demonstrating that no rational basis exists.
Despite its generally deferential nature, the Court has occasionally struck down laws under rational basis review. In City of Cleburne v. Cleburne Living Center (1985), the Court invalidated a zoning ordinance that discriminated against individuals with intellectual disabilities, finding that the ordinance rested on irrational prejudice. In Romer v. Evans (1992), the Court struck down a Colorado constitutional amendment that prohibited protections based on sexual orientation, holding that the amendment lacked a rational relationship to any legitimate governmental interest.
Affirmative Action and Equal Protection
The application of the Equal Protection Clause to affirmative action programs has been one of the most controversial areas of constitutional law. The central question is whether government policies that benefit historically disadvantaged groups should be subject to the same strict scrutiny as policies that disadvantage those groups. The Supreme Court has consistently held that all racial classifications, whether benign or invidious in purpose, are subject to strict scrutiny.
This principle was first articulated in Regents of the University of California v. Bakke (1978), where Justice Powell’s controlling opinion applied strict scrutiny to a medical school admissions program that reserved seats for minority applicants. The Court later applied the same standard to federal affirmative action programs in Adarand Constructors v. Peña (1995), overruling prior precedent that had applied intermediate scrutiny to federal programs.
The Court’s approach to affirmative action in higher education evolved through a series of important decisions. In Grutter v. Bollinger (2003), the Court upheld the University of Michigan Law School’s admissions program, holding that the educational benefits of diversity constituted a compelling interest and that the program was narrowly tailored because it considered race as one factor among many in a holistic review process. However, the Court struck down the University of Michigan’s undergraduate admissions system, which assigned points based on race, as insufficiently individualized.
Equal Protection and Discrimination
Race and National Origin
The Equal Protection Clause applies with its greatest force to racial discrimination. The Court has held that any government racial classification — whether benign or invidious in purpose — is subject to strict scrutiny. This principle applies to affirmative action programs as well as to discriminatory laws. In Regents of the University of California v. Bakke (1978), Justice Powell’s controlling opinion applied strict scrutiny to a medical school’s affirmative action program, and the Court has consistently reaffirmed that approach.
In Students for Fair Admissions v. Harvard (2023), the Court held that race-conscious admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause. The decision effectively ended the consideration of race in college admissions, overruling prior precedent that had permitted narrowly tailored use of race to achieve educational diversity.
Gender Discrimination
The Court’s gender discrimination jurisprudence has evolved dramatically since the 1970s. In United States v. Virginia (1996), the Court struck down the Virginia Military Institute’s male-only admissions policy, holding that the state had not provided an “exceedingly persuasive justification” for the gender-based classification. The Court’s scrutiny of gender classifications, while nominally intermediate, has often approached strict scrutiny in practice.
Sexual Orientation and Gender Identity
The application of equal protection principles to sexual orientation and gender identity has been one of the most dynamic areas of constitutional law. In Obergefell v. Hodges (2015), the Court held that the right to marry is a fundamental right protected by the due process clause, and that state bans on same-sex marriage also violated the Equal Protection Clause. The Court has not definitively settled the level of scrutiny for sexual orientation classifications, though several decisions suggest heightened scrutiny may apply.
The State Action Requirement
Like other provisions of the Fourteenth Amendment, the Equal Protection Clause applies only to government action, not private conduct. This requirement, known as the state action doctrine, limits the reach of equal protection to discrimination that is attributable to the government. Private discrimination, however invidious, does not violate the Equal Protection Clause, though it may be prohibited by federal or state statutes.
Frequently Asked Questions
What is the difference between equal protection and due process? Equal protection prohibits the government from treating similarly situated people differently without adequate justification. Due process prohibits the government from depriving anyone of life, liberty, or property without fair procedures and protects certain fundamental rights from government interference. Both clauses are in the Fourteenth Amendment, but they protect different interests.
Does the Equal Protection Clause apply to the federal government? The Equal Protection Clause by its terms applies only to the states. However, the Supreme Court has held that the Due Process Clause of the Fifth Amendment includes an equal protection component that applies to the federal government. In Bolling v. Sharpe (1954), the companion case to Brown v. Board of Education, the Court applied this principle to strike down segregation in the District of Columbia public schools.
How do courts determine whether a classification is subject to strict scrutiny? Courts look at whether the classification is based on a suspect classification (race, national origin) or burdens a fundamental right. Suspect classifications are those that have historically been used to discriminate against groups that lack political power and are defined by immutable characteristics.
Can private businesses discriminate under the Equal Protection Clause? No, because the Equal Protection Clause requires government action. Private discrimination may violate federal or state civil rights laws, including Title II of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations. The Constitution itself, however, does not directly regulate private conduct.
Conclusion
The Equal Protection Clause stands as the constitutional embodiment of the American commitment to equality under law. From its origins in the Reconstruction era to its continuing application to new forms of discrimination and new claims of right, the clause has been the vehicle through which generations of Americans have sought to realize the promise that all persons are created equal. The work of interpreting and applying the Equal Protection Clause continues, as new challenges and new understandings of equality emerge in an evolving society.