The Equal Protection Clause and Fundamental Interests
Litigants who challenge a legislative classification on equal protection grounds prefer, for obvious reasons, to have strict scrutiny apply to that classification. The paradigm suspect classification for which strict scrutiny is used is a classification based on race. However, there is another category of equal protection cases in which a legislative classification has to overcome strict scrutiny, namely, those cases in which a legislative classification burdens a fundamental interest. Unfortunately, this category often causes a great deal of confusion.
The Supreme Court’s Record
It has not helped that the Supreme Court has sometimes misleadingly characterized fundamental interests as “fundamental rights.” At other times, the Court has made clear that fundamental interests are not substantive constitutional rights at all but are “only” fundamental interests. At still other times, the Court has applied strict scrutiny in equal protection cases in which substantive constitutional rights were indeed implicated. Ultimately, the development of fundamental interest doctrine came to a halt in San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973).
A Suggested Overview
The following may be useful for understanding this category at the doctrinal level.
1. As a general matter, fundamental interests are not substantive constitutional rights. This includes, for example, voting in state and local elections, as in Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966), Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969), and Reynolds v. Sims, 377 U.S. 533 (1964), and access to the criminal appellate process, as in Griffin v. Illinois, 351 U.S. 12 (1956) and Douglas v. California, 372 U.S. 353 (1963).
2. On the other hand, procreation, which began as a fundamental interest long ago in Skinner v. Oklahoma, 316 U.S. 535 (1942), is now considered to be the forerunner of a substantive constitutional right to procreate, one aspect of the right of privacy.
3.The right to travel interstate was declared by the Court in Shapiro v. Thompson, 394 U.S. 618 (1969), to be a substantive constitutional right and therefore triggered the use of strict scrutiny in an equal protection setting.
4. Fundamental interest equal protection was severely criticized by various justices over the years as the equivalent of “Lochnerizing,” that is, as imposing the subjective views of the majority of justices as to what is “fundamental” in order to apply strict scrutiny and to strike down disfavored classifications. Whatever the force of this argument, Rodriguez rather clearly halted the development of new fundamental interests by defining such interests as either implicitly or explicitly in the constitution and at the same time, and somewhat disingenuously, reaffirmed the holdings in previous fundamental interest cases.
Of course, there are deeper issues that revolve around the development of , and justifications for, the now-fixed category of equal protection fundamental interests. These include the use of representation reinforcement as a possible justification for the creation of certain fundamental interests such as voting. But that does not really explain Skinner and the access to the criminal appellate process cases such as Griffin and Douglas.