Equal Protection Clause

The Equal Protection Clause is part of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides that no state shall deny to any person within its jurisdiction "the equal protection of the laws".

A primary motivation for this clause was to validate the equality provisions contained in the Civil Rights Act of 1866, which guaranteed that all people would have rights equal to those of all citizens. As a whole, the Fourteenth Amendment marked a large shift in American constitutionalism, by applying substantially more constitutional restrictions against the states than had applied before the Civil War.

The meaning of the Equal Protection Clause has been the subject of much debate, and inspired the well-known phrase "Equal Justice Under Law". This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision that helped to dismantle racial segregation, and also the basis for many other decisions rejecting discrimination against people belonging to various groups.

The Equal Protection Clause itself applies only to state and local governments. However, the Supreme Court held in Bolling v. Sharpe (1954) that equal protection requirements apply to the federal government through the Due Process Clause of the Fifth Amendment.


The Equal Protection Clause is located at the end of Section 1 of the Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis added).


Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause.

Before and during the Civil War, the Southern states violated the rights of free speech of pro-Union citizens, anti-slavery advocates, and northerners in general. During the Civil War, the Southern states stripped many white citizens of their state citizenship and banished them from the states, effectively confiscating their property. Shortly after the Union victory in the American Civil War, the Thirteenth Amendment was proposed by Congress and ratified by the states in 1865, abolishing slavery. Many ex-Confederate states then adopted Black Codes following the war. These laws severely restricted the rights of blacks to hold property, including real property (such as real estate) and many forms of personal property, and to form legally enforceable contracts. These codes also created harsher criminal penalties for blacks than for whites.[1]

Because of the inequality these Black Codes imposed, Congress enacted the Civil Rights Act of 1866. This Act provided that all those born in the United States were citizens (contrary to the Supreme Court's 1857 decision in Dred Scott v. Sandford), and required that "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."[2]

President Andrew Johnson Vetoed the Civil Rights bill of 1866 admid concerns (among other things) that Congress did not have the constitutional authority to pass such a law. Such doubts were one factor that led Congress to begin to draft and debate what would become the Equal Protection Clause of the Fourteenth Amendment.[3][4] Moreover, Congress wanted to protect white Unionists who were under personal and legal attack in the former Confederacy.[5] The effort was led by the Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens. The most important among these, however, was Bingham, a Congressman from Ohio, who drafted the language of the Equal Protection Clause.

The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the ... Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that allowed the Equal Protection Clause to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.[6]

During the debate in Congress, more than one version of the clause was considered. Here is the first version: "The Congress shall have power to make all laws which shall be necessary and proper to secure ... to all persons in the several states equal protection in the rights of life, liberty, and property."[7] Bingham said about this version: "It confers upon Congress power to see to it that the protection given by the laws of the States shall be equal in respect to life and liberty and property to all persons."[7] The main opponent of the first version was Congressman Robert S. Hale of New York, despite Bingham's public assurances that "under no possible interpretation can it ever be made to operate in the State of New York while she occupies her present proud position."[8]

Hale ended up voting for the final version, however. When Senator Jacob Howard introduced that final version, he said:[9]

It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?

The 39th United States Congress proposed the Fourteenth Amendment on June 13, 1866. A difference between the initial and final versions of the clause was that the final version spoke not just of "equal protection" but of "the equal protection of the laws". John Bingham said in January 1867: "no State may deny to any person the equal protection of the laws, including all the limitations for personal protection of every article and section of the Constitution...."[10] By July 9, 1868, three-fourths of the states (28 of 37) ratified the amendment, and that is when the Equal Protection Clause became law.[11]

Early history following ratification

Bingham said in a speech on March 31, 1871 that the clause meant no State could deny to any one "the equal protection of the Constitution of the United States ... [or] any of the rights which it guarantees to all men", nor deny to anyone "any right secured to him either by the laws and treaties of the United States or of such State."[12] At that time, the meaning of equality varied from one state to another.[13]

Four of the original thirteen states never passed any laws barring interracial marriage, and the other states were divided on the issue in the Reconstruction era.[14] In 1872, the Alabama Supreme Court ruled that the state's ban on mixed-race marriage violated the "cardinal principle" of the 1866 Civil Rights Act and of the Equal Protection Clause.[15] Almost a hundred years would pass before the U.S. Supreme Court followed that Alabama case (Burns v. State) in the case of Loving v. Virginia. In Burns, the Alabama Supreme Court said:[16]

Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it.

As for public schooling, no states during this era of Reconstruction actually required separate schools for blacks.[17] However, some states (e.g. New York) gave local districts discretion to set up schools that were deemed separate but equal.[18] In contrast, Iowa and Massachusetts flatly prohibited segregated schools ever since the 1850s.[19]

Likewise, some states were more favorable to women's legal status than others; New York, for example, had been giving women full property, parental, and widow's rights since 1860, but not the right to vote.[20] No state or territory allowed women's suffrage when the Equal Protection Clause took effect in 1868.[21] In contrast, African American men had full voting rights in five states, at that time.[22]

Gilded Age interpretation and the Plessy decision

In the United States, the year 1877 marked the end of Reconstruction and the start of the Gilded Age. The first truly landmark equal protection decision by the Supreme Court was Strauder v. West Virginia (1880). A black man convicted of murder by an all-white jury challenged a West Virginia statute excluding blacks from serving on juries. Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of [the defendant's] race." At the same time, the Court explicitly allowed sexism and other types of discrimination, saying that states "may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. ... Its aim was against discrimination because of race or color."[23]

The Court that decided Plessy

The next important postwar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other places of public amusement." In its opinion, the Court explicated what has since become known as the "state action doctrine," according to which the guarantees of the Equal Protection Clause apply only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong". Justice John Marshall Harlan dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism." Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment," and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state.

A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins (1886).[24] In it the word "person" from the 14th Amendment's section has been given the broadest possible meaning by the U.S. Supreme Court:[25]

These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws.

Thus, the Clause would not be limited to discrimination against African Americans, but would extend to other races, colors, and nationalities such as (in this case) legal aliens in the United States who are Chinese citizens.

In its most contentious Gilded Age interpretation of the Equal Protection Clause, Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana Jim Crow law that required the segregation of blacks and whites on railroads and mandated separate railway cars for members of the two races.[26] The Court, speaking through Justice Henry B. Brown, ruled that the Equal Protection Clause had been intended to defend equality in civil rights, not equality in social arrangements. All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people." Justice Harlan again dissented. "Every one knows," he wrote,

that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons .... [I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."[27] Harlan's philosophy of constitutional colorblindness would eventually become more widely accepted, especially after World War II.

It was also in the Gilded Age that a ruling by the Supreme Court included headnotes written by John C.Bancroft, a former railway company president. Bancroft, acting as court reporter, indicated in the headnotes that corporations were "persons", while the actual court decision itself avoided specific statements regarding the Equal Protection Clause as applied to corporations.[28] However, the legal concept of corporate personhood predates the Fourteenth Amendment.[29] In the late 19th and early 20th centuries, the Clause was used to strike down numerous statutes applying to corporations. Since the New Deal, however, such invalidations have been rare.[30]

Between Plessy and Brown

The U.S. Supreme Court Building opened in 1935, inscribed with the words "Equal Justice Under Law" which were inspired by the Equal Protection Clause.[31]

The Plessy decision was not all bad for civil rights. For example, in Missouri ex rel. Gaines v. Canada (1938), Lloyd Gaines was a black student at Lincoln University of Missouri, one of the historically black colleges in Missouri. He applied for admission to the law school at the all-white University of Missouri, since Lincoln did not have a law school, but was denied admission due solely to his race. The Supreme Court, applying the separate-but-equal principle of Plessy, held that a State offering a legal education to whites but not to blacks violated the Equal Protection Clause.

In Shelley v. Kraemer (1948), the Court showed increased willingness to find racial discrimination illegal. The Shelley case concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could; after all, the Supreme Court reasoned, courts were part of the state.

The companion cases Sweatt v. Painter and McLaurin v. Oklahoma State Regents, both decided in 1950, paved the way for a series of school integration cases. In McLaurin, the University of Oklahoma had admitted McLaurin, an African-American, but had restricted his activities there: he had to sit apart from the rest of the students in the classrooms and library, and could eat in the cafeteria only at a designated table. A unanimous Court, through Chief Justice Fred M. Vinson, said that Oklahoma had deprived McLaurin of the equal protection of the laws:

There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.

The present situation, Vinson said, was the former. In Sweatt, the Court considered the constitutionality of Texas's state system of law schools, which educated blacks and whites at separate institutions. The Court (again through Chief Justice Vinson, and again with no dissenters) invalidated the school system—not because it separated students, but rather because the separate facilities were not equal. They lacked "substantial equality in the educational opportunities" offered to their students.

All of these cases, as well as the upcoming Brown case, were litigated by the National Association for the Advancement of Colored People. It was Charles Hamilton Houston, a Harvard Law School graduate and law professor at Howard University, who in the 1930s first began to challenge racial discrimination in the federal courts. Thurgood Marshall, a former student of Houston's and the future Solicitor General and Associate Justice of the Supreme Court, joined him. Both men were extraordinarily skilled appellate advocates, but part of their shrewdness lay in their careful choice of which cases to litigate, selecting the best legal proving grounds for their cause.[32]

Brown and its consequences

When Earl Warren became Chief Justice in 1953, Brown had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional.[33] In that opinion, Warren wrote:

To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.... We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

Warren discouraged other justices, such as Robert H. Jackson, from publishing any concurring opinion; Jackson’s draft, which emerged much later (in 1988), included this statement: "Constitutions are easier amended than social customs, and even the North never fully conformed its racial practices to its professions".[34][35] The Court set the case for re-argument on the question of how to implement the decision. In Brown II, decided in 1954, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be so as well. Thus the court devolved authority to local school boards and to the trial courts that had originally heard the cases. (Brown was actually a consolidation of four different cases from four different states.) The trial courts and localities were told to desegregate with "all deliberate speed".

The Court that decided Brown

Partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance" in the South to the desegregation decision, integration did not begin in any significant way until the mid-1960s and then only to a small degree. In fact, much of the integration in the 1960s happened in response not to Brown but to the Civil Rights Act of 1964. The Supreme Court intervened a handful of times in the late 1950s and early 1960s, but its next major desegregation decision was not until Green v. School Board of New Kent County (1968), in which Justice William J. Brennan, writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. This was a significant decision; freedom-of-choice plans had been very common responses to Brown. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks rarely attended white-identified schools.

In response to Green, many Southern districts replaced freedom-of-choice with geographically based schooling plans; because residential segregation was widespread, little integration was accomplished. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of Education approved busing as a remedy to segregation; three years later, though, in the case of Milliken v. Bradley (1974), it set aside a lower court order that had required the busing of students between districts, instead of merely within a district. Milliken basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the 1950s and 1960s.[36]

The curtailment of busing in Milliken v. Bradley is one of several reasons that have been cited to explain why equalized educational opportunity in the United States has fallen short of completion. In the view of various liberal scholars, the election of Richard Nixon in 1968 meant that the executive branch was no longer behind the Court's constitutional commitments.[37] Also, the Court itself decided in San Antonio Independent School District v. Rodriguez (1973) that the Equal Protection Clause allows — but does not require — a state to provide equal educational funding to all students within the state.[38] Moreover, the Court’s decision in Pierce v. Society of Sisters (1925) allowed families to opt out of public schools, despite “inequality in economic resources that made the option of private schools available to some and not to others”, as Martha Minow has put it.[39]

American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, or due to Congressional action, or due to societal change, the percentage of black students attending majority-black school districts decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.[40] In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court held that, if a school system became racially imbalanced due to social factors other than governmental racism, then the state is not as free to integrate schools as if the state had been at fault for the racial imbalance. This is especially evident in the charter school system where parents of students can pick which schools their children attend based on the amenities provided by that school and the needs of the child. It seems that race is a factor in the choice of charter school.[41]

Application to federal government

By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing some of the same restrictions on the federal government: "Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive."[42] In Lawrence v. Texas the Supreme Court added: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests" [43] Some scholars have argued that the Court's decision in Bolling should have been reached on other grounds. For example, Michael W. McConnell has written that Congress never "required that the schools of the District of Columbia be segregated."[44] According to that rationale, the segregation of schools in Washington D.C. was unauthorized and therefore illegal.

Tiered scrutiny

Despite the undoubted importance of Brown, much of modern equal protection jurisprudence originated in other cases, though not everyone agrees about which other cases. Some scholars assert that the opinion of Justice Harlan Stone in United States v. Carolene Products Co. (1938)[45] contained a footnote that was a critical turning point for equal protection jurisprudence,[46] but that assertion is disputed.[47]

Whatever its precise origins, the basic idea of the modern approach is that more judicial scrutiny is triggered by purported discrimination that involves "fundamental rights" (such as the right to procreation), and similarly more judicial scrutiny is also triggered if the purported victim of discrimination has been targeted because he or she belongs to a "suspect classification" (such as a single racial group). This modern doctrine was pioneered in Skinner v. Oklahoma (1942), which involved depriving certain criminals of the fundamental right to procreate:[48]

When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.

Until 1976, the Supreme Court usually ended up dealing with discrimination by using one of two possible levels of scrutiny: what has come to be called "strict scrutiny" (when a suspect class or fundamental right is involved), or instead the more lenient "rational basis review". Strict scrutiny means that a challenged statute must be "narrowly tailored" to serve a "compelling" government interest, and must not have a "less restrictive" alternative. In contrast, rational basis scrutiny merely requires that a challenged statute be "reasonably related" to a "legitimate" government interest.

However, in the 1976 case of Craig v. Boren, the Court added another tier of scrutiny, called "intermediate scrutiny", regarding gender discrimination. The Court may have added other tiers too, such as "enhanced rational basis" scrutiny,[49] and "exceedingly persuasive basis" scrutiny.[50]

All of this is known as "tiered" scrutiny, and it has had many critics, including Justice Thurgood Marshall who argued for a "spectrum of standards in reviewing discrimination", instead of discrete tiers.[51] Justice John Paul Stevens argued for only one level of scrutiny, given that "there is only one Equal Protection Clause".[51] The whole tiered strategy developed by the Court is meant to reconcile the principle of equal protection with the reality that most laws necessarily discriminate in some way.[52]

Choosing the standard of scrutiny can determine the outcome of a case, and the strict scrutiny standard is often described as "strict in theory and fatal in fact".[53] In order to select the correct level of scrutiny, Justice Antonin Scalia urged the Court to identify rights as "fundamental" or identify classes as "suspect" by analyzing what was understood when the Equal Protection Clause was adopted, instead of based upon more subjective factors.[54]

Discriminatory intent and disparate impact

Main article: Disparate impact

Because inequalities can be caused either intentionally or unintentionally, the Supreme Court has decided that the Equal Protection Clause itself does not forbid governmental policies that unintentionally lead to racial disparities, though Congress may have some power under other clauses of the Constitution to address unintentional disparate impacts. This subject was addressed in the seminal case of Arlington Heights v. Metropolitan Housing Corp. (1977). In that case, the plaintiff, a housing developer, sued a city in the suburbs of Chicago that had refused to re-zone a plot of land on which the plaintiff intended to build low-income, racially integrated housing. On the face, there was no clear evidence of racially discriminatory intent on the part of Arlington Heights's planning commission. The result was racially disparate, however, since the refusal supposedly prevented mostly African-Americans and Hispanics from moving in. Justice Lewis 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, "impact is not determinative."

The result in Arlington Heights was similar to that in Washington v. Davis (1976), and has been defended on the basis that the Equal Protection Clause was not designed to guarantee equal outcomes, but rather equal opportunities; if a legislature wants to correct unintentional but racially disparate effects, it may be able to do so through further legislation.[55] It is possible for a discriminating state to hide its true intention, and one possible solution is for disparate impact to be considered as stronger evidence of discriminatory intent.[56] This debate, though, is currently academic, since the Supreme Court has not changed its basic approach as outlined in Arlington Heights.

For an example of how this rule limits the Court's powers under the Equal Protection Clause, see McClesky v. Kemp (1987). In that case a black man was convicted of murdering a white police officer and sentenced to death in the state of Georgia. A study found that killers of whites were more likely to be sentenced to death than were killers of blacks.[57] The Court found that the defense had failed to prove that such data demonstrated the requisite discriminatory intent by the Georgia legislature and executive branch.

Voting rights

Justice John Marshall Harlan II sought to interpret the Equal Protection Clause in the context of Section 2 of the same amendment

The Supreme Court ruled in Nixon v. Herndon (1927) that the Fourteenth Amendment prohibited denial of the vote based on race. The first modern application of the Equal Protection Clause to voting law came in Baker v. Carr (1962), where the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause.

The ruling in Baker v. Carr was extended two years later in Reynolds v. Sims (1964), in which a "one man, one vote" standard was laid down: in both houses of state legislatures, each resident had to be given equal weight in representation. Since the principle of Reynolds v. Sims is violated by the United States Senate, and since equal protection applies against the federal government via the Fifth Amendment per Bolling v. Sharpe, logic would dictate that the U.S. Senate itself is unconstitutional, and has been unconstitutional for centuries.[58]

It may seem counterintuitive that the Equal Protection Clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment and the Nineteenth Amendment redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan (the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights, and in reference to the Fifteenth and Nineteenth Amendments, he said:

If constitutional amendment was the only means by which all men and, later, women, could be guaranteed the right to vote at all, even for federal officers, how can it be that the far less obvious right to a particular kind of apportionment of state legislatures ... can be conferred by judicial construction of the Fourteenth Amendment? [Emphasis in the original.]

Harlan also relied on the fact that Section Two of the Fourteenth Amendment "expressly recognizes the States' power to deny 'or in any way' abridge the right of their inhabitants to vote for 'the members of the [state] Legislature.'"[59] Section Two of the Fourteenth Amendment provides a specific federal response to such actions by a state: reduction of a state's representation in Congress. However, the Supreme Court has instead responded that voting is a "fundamental right" on the same plane as marriage (Loving v. Virginia); for any discrimination in fundamental rights to be constitutional, the Court requires the legislation to pass strict scrutiny. Under this theory, equal protection jurisprudence has been applied to voting rights.

A recent use of equal protection doctrine came in Bush v. Gore (2000). At issue was the controversial recount in Florida in the aftermath of the 2000 presidential election. There, the Supreme Court held that the different standards of counting ballots across Florida violated the equal protection clause. It was not this holding that proved especially controversial among commentators, and indeed, the proposition gained seven out of nine votes; Justices Souter and Breyer joined the majority of five—but only, it should be emphasized, for the finding that there was an Equal Protection violation. Much more controversial was the remedy that the Court chose, namely, the cessation of a statewide recount.[60]

Sex, disability, and sexual orientation

Originally, the Fourteenth Amendment did not forbid sex discrimination to the same extent as other forms of discrimination. On the one hand, Section Two of the amendment specifically discouraged states from interfering with the voting rights of “males”, which made the amendment anathema to many women when it was proposed in 1866.[61] On the other hand, as feminists like Victoria Woodhull pointed out, the word "person" in the Equal Protection Clause was apparently chosen deliberately, instead of a masculine term that could have easily been used instead.[62]

In 1971, the U.S. Supreme Court decided Reed v. Reed, extending the Equal Protection Clause of the Fourteenth Amendment to protect women from sex discrimination, in situations where there is no rational basis for the discrimination.[63] That level of scrutiny was boosted to an intermediate level in Craig v. Boren (1976).[64]

Each state can guarantee more equality than does the Equal Protection Clause. For example, the state of Wyoming granted women the right to vote even before the Nineteenth Amendment required it.

The Supreme Court has been disinclined to extend full "suspect classification" status (thus making a law that categorizes on that basis subject to greater judicial scrutiny) for groups other than racial minorities and religious groups. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class. Many commentators have noted, howeverand Justice Thurgood Marshall so notes in his partial concurrencethat the Court did appear to examine the City of Cleburne's denial of a permit to a group home for intellectually disabled people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.[65]

The Court's decision in Romer v. Evans (1996) struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination." The Court rejected as "implausible" the dissent's argument that the amendment would not deprive homosexuals of general protections provided to everyone else but rather would merely prevent "special treatment of homosexuals."[66] Much as in City of Cleburne, the Romer decision seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.[67]

In Lawrence v. Texas (2003), the Court struck down a Texas statute prohibiting homosexual sodomy on substantive due process grounds. In Justice Sandra Day O'Connor's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne, and also relied in part on Romer. Notably, O'Connor's opinion did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation.

While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.[68] Other scholars disagree, arguing that "homophobia" is distinct from sexism, in a sociological sense, and so treating it as such would be an unacceptable judicial shortcut.[69]

In 2013, the Court struck down part of the federal Defense of Marriage Act, in United States v. Windsor. No state statute was in question, and therefore the Equal Protection Clause did not apply. The Court did employ similar principles, however, in combination with federalism principles. The Court did not purport to use any level of scrutiny more demanding than rational basis review, according to law professor Erwin Chemerinsky.[70] The four dissenting justices argued that the authors of the statute were rational.[71]

In 2015, the Supreme Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and required all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other jurisdictions.

Affirmative action

Affirmative action is the consideration of race, gender, or other factors, to benefit an underrepresented group or to address past injustices done to that group. Individuals who belong to the group are preferred over those who do not belong to the group, for example in educational admissions, hiring, promotions, awarding of contracts, and the like.[72] Such action may be used as a "tie-breaker" if all other factors are inconclusive, or may be achieved through quotas, which allot a certain number of benefits to each group.

During Reconstruction, Congress enacted race-conscious programs primarily to assist newly freed slaves who had personally been denied many advantages earlier in their lives. Such legislation was enacted by many of the same people who framed the Equal Protection Clause, though that clause did not apply to such federal legislation, and instead only applied to state legislation.[73] Likewise, the Equal Protection Clause does not apply to private universities and other private businesses, which are free to practice affirmative action unless prohibited by federal statute or state law.

Several important affirmative action cases to reach the Supreme Court have concerned government contractorsfor instance, Adarand Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co. (1989). But the most famous cases have dealt with affirmative action as practiced by public universities: Regents of the University of California v. Bakke (1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger and Gratz v. Bollinger.

In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan Law School. In dicta, however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In Gratz, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.

In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice Clarence Thomas in his dissent to Grutter—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one.[74] On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.[75]

See also


  1. For details on the rationale for, and ratification of, the Fourteenth Amendment, see generally Foner, Eric (1988). Reconstruction: America's Unfinished Revolution, 1863—1877. New York: Harper & Row. ISBN 0-06-091453-X., as well as Brest, Paul; et al. (2000). Processes of Constitutional Decisionmaking. Gaithersburg: Aspen Law & Business. pp. 241–242. ISBN 0-7355-1250-7.
  2. See Brest et al. (2000), pp. 242–46.
  3. Rosen, Jeffrey. The Supreme Court: The Personalities and Rivalries That Defined America, p. 79 (MacMillan 2007).
  4. Newman, Roger. The Constitution and its Amendments, Vol. 4, p. 8 (Macmillan 1999).
  5. Hardy, David. "Original Popular Understanding of the 14th Amendment As Reflected in the Print Media of 1866-68", Whittier Law Review, Vol. 30, p. 695 (2008-2009).
  6. See Foner (1988), passim. See also Ackerman, Bruce A. (2000). We the People, Volume 2: Transformations. Cambridge: Belknap Press. pp. 99–252. ISBN 0-674-00397-7.
  7. 1 2 Kelly, Alfred. "Clio and the Court: An Illicit Love Affair", The Supreme Court Review at p. 148 (1965) reprinted in The Supreme Court in and of the Stream of Power (Kermit Hall ed., Psychology Press 2000).
  8. Bickel, Alexander. "The Original Understanding and the Segregation Decision", Harvard Law Review, Vol. 69, pp. 35-37 (1955). Bingham was speaking on February 27, 1866. See transcript.
  9. Curtis, Michael. "Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment", Boston College Law Review, Vol. 38 (1997).
  10. Glidden, William. Congress and the Fourteenth Amendment: Enforcing Liberty and Equality in the States, p. 79 (Lexington Books 2013).
  11. Mount, Steve (January 2007). "Ratification of Constitutional Amendments". Retrieved February 24, 2007.
  12. Flack, Horace. The Adoption of the Fourteenth Amendment, p. 232 (Johns Hopkins Press, 1908). For Bingham's full speech, see Appendix to the Congressional Globe, 42d Congress, 1st Sess., p. 83 (March 31, 1871).
  13. requires citation
  14. Wallenstein, Peter. Tell the Court I Love My Wife: Race, Marriage, and Law--An American History, p. 253 (Palgrave Macmillan, Jan 17, 2004). The four of the original thirteen states are New Hampshire, Connecticut, New Jersey, and New York. Id.
  15. Pascoe, Peggy. What Comes Naturally: Miscegenation Law and the Making of Race in America, p. 58 (Oxford U. Press 2009).
  16. Calabresi, Steven and Matthews, Andrea. "Originalism and Loving v. Virginia", Brigham Young University Law Review (2012).
  17. Foner, Eric. Reconstruction: America's Unfinished Revolution, 1863–1877, pp. 321–322 (HarperCollins 2002).
  18. Bickel, Alexander. "The Original Understanding and the Segregation Decision", Harvard Law Review, Vol. 69, pp. 35–37 (1955).
  19. Finkelman, Paul. "Rehearsal for Reconstruction: Antebellum Origins of the Fourteenth Amendment", in The Facts of Reconstruction: Essays in Honor of John Hope Franklin, p. 19 (Eric Anderson and Alfred A. Moss, eds., LSU Press, 1991).
  20. Woloch, Nancy. Women and the American Experience, p. 185 (New York: Alfred A. Knopf, 1984).
  21. Wayne, Stephen. Is This Any Way to Run a Democratic Election?, p. 27 (CQ PRESS 2013).
  22. McInerney, Daniel. A Traveller's History of the USA, P. 212 (Interlink Books, 2001).
  23. Kerber, Linda. No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship, p. 133 (Macmillan, 1999).
  24. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
  25. "Annotation 18 - Fourteenth Amendment: Section 1 – Rights Guaranteed: Equal Protection of the Laws: Scope and application state action". FindLaw for Legal Professionals - Law & Legal Information by FindLaw, a Thomson Reuters business. Retrieved 23 November 2013.
  26. For a summary of the social, political and historical background to Plessy, see Woodward, C. Vann (2001). The Strange Career of Jim Crow. New York: Oxford University Press. pp. 6 and pp. 69–70. ISBN 0-19-514690-5.
  27. For a skeptical evaluation of Harlan, see Chin, Gabriel J. (1996). "The Plessy Myth: Justice Harlan and the Chinese Cases". Iowa Law Review. 82: 151. ISSN 0021-0552.
  28. See Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). In the summary of the case Bancroft wrote that the Court declared that it did not need to hear argument on whether the Equal Protection Clause protected corporations, because "we are all of the opinion that it does." Id. at 396. Chief Justice Morrison Waite announced from the bench that the Court would not hear argument on the question whether the equal protection clause applied to corporations: "We are all of the opinion that it does." The background and developments from this utterance are treated in H. Graham, Everyman's Constitution--Historical Essays on the Fourteenth Amendment, the Conspiracy Theory, and American Constitutionalism (1968), chs. 9, 10, and pp. 566-84. Justice Hugo Black, in Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 85 (1938), and Justice William O. Douglas, in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576 (1949), have disagreed that corporations are persons for equal protection purposes.
  29. See Providence Bank v. Billings, 29 U.S. 514 (1830), in which Chief Justice Marshall wrote: "The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men." Nevertheless, the concept of corporate personhood remains controversial. See Mayer, Carl J. (1990). "Personalizing the Impersonal: Corporations and the Bill of Rights". Hastings Law Journal. 41: 577. ISSN 0017-8322.
  30. See Currie, David P. (1987). "The Constitution in the Supreme Court: The New Deal, 1931–1940". University of Chicago Law Review. The University of Chicago Law Review, Vol. 54, No. 2. 54 (2): 504, 547. doi:10.2307/1599798. JSTOR 1599798.
  31. Feldman, Noah. Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices, p. 145 (Hachette Digital 2010).
  32. See generally Morris, Aldon D. (1986). Origin of the Civil Rights Movements: Black Communities Organizing for Change. New York: Free Press. ISBN 0-02-922130-7.
  33. For an exhaustive history of the Brown case from start to finish, see Kluger, Richard (1977). Simple Justice. New York: Vintage. ISBN 0-394-72255-8.
  34. Shimsky, MaryJane. "Hesitating Between Two Worlds": The Civil Rights Odyssey of Robert H. Jackson, p. 468 (ProQuest, 2007).
  35. I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases, pp. 133–151 (Mark Tushnet, ed. Beacon Press, 2008).
  36. For a comprehensive history of school desegregation from Brown through Milliken (one on which this article relies for its assertions), see Brest et al. (2000), pp. 768–794.
  37. For the history of the American political branches' engagement with the Supreme Court's commitment to desegregation (and vice versa), see Powe, Lucas A., Jr. (2001). The Warren Court and American Politics. Cambridge, MA: Belknap Press. ISBN 0-674-00683-6., and Kotz, Nick (2004). Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws That Changed America. Boston: Houghton Mifflin. ISBN 0-618-08825-3. For more on the debate summarized in the text, see, e.g., Rosenberg, Gerald N. (1993). The Hollow Hope: Can Courts Bring About Social Change?. Chicago: University of Chicago Press. ISBN 0-226-72703-3., and Klarman, Michael J. (1994). "Brown, Racial Change, and the Civil Rights Movement". Virginia Law Review. Virginia Law Review, Vol. 80, No. 1. 80 (1): 7. doi:10.2307/1073592. JSTOR 1073592.
  38. Reynolds, Troy. "Education Finance Reform Litigation and Separation of Powers: Kentucky Makes Its Contribution," Kentucky Law Journal, Vol. 80 (1991): 309, 310.
  39. Minow, Martha. “Confronting the Seduction of Choice: Law, Education and American Pluralism”, Yale Law Journal, Vol. 120, p. 814, 819-820 (2011)(Pierce "entrenched the pattern of a two-tiered system of schooling, which sanctions private opt-outs from publicly run schools").
  40. For data and analysis, see Orfield (July 2001). "Schools More Separate" (PDF). Harvard University Civil Rights Project. Retrieved 2008-07-16.
  41. Jacobs, Nicholas (8 August 2011). "Racial, Economic, and Linguistic Segregation: Analyzing Market Supports in the District of Columbia's Public Charter Schools.". Education and urban society. 45 (1): 120–141. doi:10.1177/0013124511407317. Retrieved 28 October 2013.
  42. "FindLaw | Cases and Codes". Caselaw.lp.findlaw.com. 1954-05-17. Retrieved 2012-08-13.
  43. Lawrence v. Texas, 539 U.S. 598 (2003), at page 2482
  44. Balkin, J. M.; Bruce A. Ackerman (2001). "Part II". What Brown v. Board of Education should have said : the nation's top legal experts rewrite America's landmark civil rights decision. et al. New York University Press. p. 168.
  45. 304 U.S. 144, 152 n.4 (1938). For a theory of judicial review based on Stone's footnote, see Ely, John Hart (1981). Democracy and Distrust. Cambridge, MA: Harvard University Press. ISBN 0-674-19637-6.
  46. Goldstein, Leslie. "Between the Tiers: The New(est) Equal Protection and Bush v. Gore", University of Pennsylvania Journal of Constitutional Law, Vol. 4, p. 372 (2002) .
  47. Farber, Daniel and Frickey, Philip. "Is Carolene Products Dead--Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation", California Law Review, Vol. 79, p. 685 (1991). Farber and Frickey point out that "only Chief Justice Hughes, Justice Brandeis, and Justice Roberts joined Justice Stone's footnote", and in any event "It is simply a myth...that the process theory of footnote four in Carolene Products is, or ever has been, the primary justification for invalidating laws embodying prejudice against racial minorities."
  48. Skinner v. Oklahoma, 316 U.S. 535 (1942). Sometimes the "suspect" classification strand of the modern doctrine is attributed to Korematsu v. United States (1944), but Korematsu did not involve the Fourteenth Amendment, and moreover it came later than the Skinner opinion (which clearly stated that both deprivation of fundamental rights as well as oppression of a particular race or nationality were invidious).
  49. See City of Cleburne v. Cleburne Living Center, Inc. (1985)
  50. See United States v. Virginia (1996).
  51. 1 2 Fleming, James. "'There is Only One Equal Protection Clause': An Appreciation of Justice Stevens's Equal Protection Jurisprudence", Fordham Law Review, Vol. 74, p. 2301, 2306 (2006).
  52. See Romer v. Evans, 517 U.S. 620, 631 (1996): "the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons."
  53. Curry, James et al. Constitutional Government: The American Experience, p. 282 (Kendall Hunt 2003) (attributing the phrase to Gerald Gunther).
  54. Domino, John. Civil Rights & Liberties in the 21st Century, pp. 337-338 (Pearson 2009).
  55. Herzog, Don (March 22, 2005). "Constitutional Rights: Two". Left2Right. Note that the Court has put significant limits on the congressional power of enforcement. See City of Boerne v. Flores (1997), Board of Trustees of the University of Alabama v. Garrett (2001), and United States v. Morrison (2000). The Court has also interpreted federal statutory law as limiting the power of states to correct disparate effects. See Ricci v. DeStefano (2009).
  56. See Krieger, Linda Hamilton (1995). "The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Protection Opportunity". Stanford Law Review. Stanford Law Review, Vol. 47, No. 6. 47 (6): 1161. doi:10.2307/1229191. JSTOR 1229191., and Lawrence, Charles R., III (1987). "Reckoning with Unconscious Racism". Stanford Law Review. Stanford Law Review, Vol. 39, No. 2. 39 (2): 317. doi:10.2307/1228797. JSTOR 1228797.
  57. Baldus, David C.; Pulaski, Charles; Woodworth, George (1983). "Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience". Journal of Criminal Law and Criminology. Northwestern University. 74 (3): 661–753. doi:10.2307/1143133. JSTOR 1143133.
  58. Alexander, Larry. “Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues”, in Expounding the Constitution, p. 127 (Cambridge University Press, Grant Huscroft, ed. 2008).
  59. Van Alstyne, William. "The Fourteenth Amendment, the Right to Vote, and the Understanding of the Thirty-Ninth Congress", Supreme Court Review, p. 33 (1965).
  60. For criticisms as well as several defenses of the Court's decision, see Bush v. Gore: The Question of Legitimacy, edited by Ackerman, Bruce A. (2002). Bush v. Gore : the question of legitimacy. New Haven: Yale University Press. ISBN 0-300-09379-9. Another much-cited collection of essays is Sunstein, Cass; Epstein, Richard (2001). The Vote: Bush, Gore, and the Supreme Court. Chicago: Chicago University Press. ISBN 0-226-21307-2.
  61. Cullen-Dupont, Kathryn. Encyclopedia of Women's History in America, pp. 91-92 (Infobase Publishing, Jan 1, 2009).
  62. Hymowitz, Carol and Weissman, Michaele. A History of Women in America, p. 128 (Random House Digital, 2011).
  63. Reed v. Reed - Significance, Notable Trials and Court Cases - 1963 to 1972
  64. Craig v. Boren, 429 U.S. 190 (1976).
  65. See Pettinga, Gayle Lynn (1987). "Rational Basis with Bite: Intermediate Scrutiny by Any Other Name". Indiana Law Journal. 62: 779. ISSN 0019-6665.; Wadhwani, Neelum J. (2006). "Rational Reviews, Irrational Results". Texas Law Review. 84: 801, 809811. ISSN 0040-4411.
  66. Kuligowski, Monte. "Romer v. Evans: Judicial Judgment or Emotive Utterance?," Journal of Civil Rights and Economic Development, Vol. 12 (1996).
  67. Joslin, Courtney (1997). "Equal Protection and Anti-Gay Legislation". Harvard Civil Rights-Civil Liberties Law Review. 32: 225, 240. ISSN 0017-8039. The Romer Court applied a more 'active,' Cleburne-like rational basis standard... .; Farrell, Robert C. (1999). "Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans". Indiana Law Review. 32: 357. ISSN 0019-6665.
  68. See Koppelman, Andrew (1994). "Why Discrimination against Lesbians and Gay Men is Sex Discrimination". New York University Law Review. 69: 197. ISSN 0028-7881.; see also Fricke v. Lynch, 491 F.Supp. 381, 388, fn. 6 (1980), vacated 627 F.2d 1088 [case decided on First Amendment free-speech grounds, but "This case can also be profitably analyzed under the Equal Protection Clause of the fourteenth amendment. In preventing Aaron Fricke from attending the senior reception, the school has afforded disparate treatment to a certain class of students those wishing to attend the reception with companions of the same sex."]
  69. Gerstmann, Evan. Same Sex Marriage and the Constitution, p. 55 (Cambridge University Press, 2004).
  70. Chemerinsky, Erwin. "Justice Kennedy's World", The National Law Journal (July 1, 2013): "There is another similarity between his opinion in Windsor and his earlier ones in Romer and Lawrence: the Supreme Court invalidated the law without using heightened scrutiny for sexual-orientation discrimination....A law based on animus fails to meet even rational-basis review so there was no need to adopt a higher level of scrutiny."
  71. United States v. Windsor, No. 12-307, 2013 BL 169620, 118 FEP Cases 1417 (U.S. June 26, 2013).
  72. "Affirmative Action". Stanford University. Retrieved 4/6/2012. Check date values in: |access-date= (help)
  73. See Schnapper, Eric (1985). "Affirmative Action and the Legislative History of the Fourteenth Amendment" (PDF). Virginia Law Review. Virginia Law Review, Vol. 71, No. 5. 71 (5): 753. doi:10.2307/1073012.
  74. See Schuck, Peter H. (September 5, 2003). "Reflections on Grutter". Jurist.
  75. See Siegel, Reva B. (2004). "Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown". Harvard Law Review. Harvard Law Review, Vol. 117, No. 5. 117 (5): 1470. doi:10.2307/4093259. JSTOR 4093259.; Carter, Stephen L. (1988). "When Victims Happen to Be Black". Yale Law Journal. The Yale Law Journal, Vol. 97, No. 3. 97 (3): 420447. doi:10.2307/796412. JSTOR 796412.

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