Equal Protection Clause

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The Equal Protection Clause is a part of the Fourteenth Amendment to the United States Constitution which provides that “no state shall make or enforce any law which shall [...] deny to any person within its jurisdiction the equal protection of the laws.”

The Amendment was enacted shortly after the American Civil War and the Clause's primary goal was to ensure free and equal treatment for ex-slaves, especially in Confederate states (thus the emphasis on states and their laws). However, it was later interpreted as imposing a general restraint on the government's power to discriminate against people based on "classes" not only by race but also by sex, alienage, illegitimacy, wealth and any other class. Some classes are "protected classes" such as race, while laws regarding other classes are not subject to strict scrutiny (see below). The Equal Protection Clause has also been interpreted as outlawing selective prosecution.

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

An unresolved and important legal issue to the gay rights movement is the level of scrutiny the United States Supreme Court would apply to state and federal laws that prohibit same-sex unions.

Carolene Products and the Various Levels of Equal Protection Scrutiny

Much of modern equal protection jurisprudence stems from the fourth footnote in United States v. Carolene Products Co., a commerce-clause case decided by the Supreme Court in 1938. In 1937, the Court (in what was called the "switch in time that saved nine") had loosened its rules for deciding whether certain activities affected interstate commerce, and hence could be regulated by Congress. 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.

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. It should be noted, however, that the Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia, and that intermediate scrutiny did not come into being until the 1976 case of Craig v. Boren.

The Supreme Court has defined these levels of scrutiny in the following ways: To determine whether a law violates the equal protection clause, the following analysis is done:

Strict scrutiny (if the law categorizes on the basis of race): the law is unconstitutional unless it is the "least restrictive means" of serving a "compelling" government 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. Note that in past decisions "sex" generally has meant gender. If "sex" is ever interpreted to mean sexual orientation (and so far there is no indication from the Court that it will be) intermediate scrutiny could apply to gay rights cases such as same-sex marriage.

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.

Discriminatory Intent or Disparate Impact?

Another controversial area of equal protection theory—although it seems that the legal doctrine has been settled by the Supreme Court—is the issue of whether an equal protection violation requires purposeful discrimination, or whether it merely requires what is termed "disparate impact." In other words, does Equal Protection outlaw public policies that cause racial disparities (e.g., a public school examination that more white students than black students pass) or does it merely outlaw bigotry by public officials?

The Supreme Court has answered: It depends. In the context of Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion, the Supreme Court has answered (in Griggs v. Duke Power Co.) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer can't give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII.

In most other situations, however, the Court's focus is on discriminatory intent. This was made clear in the seminal case of Arlington Heights v. Metropolitan Housing Corp.. In that case, the plaintiff, a housing developer, sued a Chicago suburb that had refused to rezone a plot of land in order to allow low-income, racially integrated housing to be built. There was no clear evidence of racially discriminatory intent on the part of Arlington Heights's planning commission, in their refusal to grant a rezoning; the result, however, was racially disparate, since the refusal prevented more African-Americans and Hispanics than whites from moving in. Justice 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, said the Court, "impact is not determinative." (See also Washington v. Davis.)