Constitutional Law II
Chapter 7 Equal Protection
Equal Protection applies to the federal government through judicial interpretation of the Due Process Clause of the 5th amendment and to state and local governments through the 14th amendment.
All equal protection cases pose the same basic question: Is the government’s classification justified by a sufficient purpose?
-The issue is whether the government can identify a sufficiently important objective for its discrimination.
Strict Scrutiny
The Supreme Court has declared that it is extremely suspicious of race discrimination, and therefore the government may use racial classifications ONLY if it proves that they are necessary to achieve a compelling government purpose.
To be more specific, all equal protection issues can be broken down into three questions:
1) What is the classification?
2) What level of scrutiny should be applied?
3) Does the particular government action meet the level of scrutiny?
Question 1 What is the classification?
The first question is: What is the government’s classification? How is the government drawing a distinction among people? Equal protection analysis always must begin by identifying how the government is distinguishing among people.
1) One is where the classification exists on the face of the law; that is, where the law in its very terms draws a distinction among people based on a particular characteristic. For example, a law that prohibits blacks from serving on juries is an obvious facial racial classification.
2) Alternatively, sometimes laws are facially neutral, but there is a discriminatory impact to the law or discriminatory effects from its administration.
Discriminatory impact is insufficient to prove a racial or gender classification. If a law is facially neutral, demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law.
-Thus, women challenging the height and weight requirements for the police force must show that the government’s purpose was to discriminate based on gender.
There are two ways of proving the existence of a classification: showing that it exists on the face of the law or demonstrating that a facially neutral law has a discriminatory impact and a discriminatory purpose.
Question 2: What is the appropriate level of scrutiny?
Once the classification is identified, the next step in analysis is to identify the level of scrutiny to be applied.
Discrimination based on race or national origin is subjected to strict scrutiny.
Also, generally, discrimination against aliens is subjected to strict scrutiny, although there are several exceptions where less than strict scrutiny is used.
Under strict scrutiny, a law is upheld if it is proven necessary to achieve a compelling government purpose. The government must have a truly significant reason for discriminating, and it must show that it cannot achieve its objective through any less discriminatory alternative. The government has the burden of proof under strict scrutiny and the law will be upheld only if the government p
pose.
In evaluating the relationship of the means of the particular law to the end, the Supreme Court often focuses on the degree to which a law is underinclusive and /or overinclusive.
-A law is underinclusive if it does not apply to individuals who are similar to those to whom the law applies.
-A law is overinclusive if it applies to those who need not be included in order for the government to achieve its purpose.
(A law can be both underinclusive and overinclusive.)
Usually equal protection is used to analyze government actions that draw a distinction among people based on specific characteristics, such as race, gender, age, disability, or other traits. Sometimes, though, equal protection is used if the government discriminates among people as to the exercise of fundamental right.
Rational Basis Review
What constitutes a legitimate purpose?
At the least, the government has a legitimate purpose if it advances a traditional “police” purpose: protecting safety, public safety, or public morals. Public safety, public health, and public morals are legitimate government purposes, but they are not the only ones. Virtually any goal that is not forbidden by the Constitution will be deemed sufficient to meet the rational basis test.
