Nahmod Law

(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)

This is the fourth in a series of posts about the Constitution that is intended for a general audience.  Previous posts introduced the Constitution and then rebutted some commonly held myths about the Constitution.

Background

The equal protection clause of the Fourteenth Amendment prohibits states and local governments from denying persons the equal protection of the laws: similarly situated persons must be treated in the same way, which is a kind of justice principle. The equal protection clause also applies to the federal government through the Fifth Amendment‘s due process clause.

The equal protection clause was originally intended to protect newly freed blacks from being treated disadvantageously because of the their race. However, it is written in broader terms and covers discrimination against persons in general. But this does not mean that whenever government discriminates or classifies, it violates equal protection. Governments could not function if they could not draw lines or classify when they legislate.

The Four Equal Protection Tests

Over the years, the Supreme Court has developed four different tests that it uses, depending on the kind of government discrimination or classification involved.

Strict Scrutiny. When government discriminates or classifies on grounds of race or ethnic origin, the Court uses “strict scrutiny.” This means that in order for the challenged discrimination to be upheld, the government must overcome a heavy burden. It must show that the discrimination promotes a compelling government interest and is narrowly tailored to achieve that interest. Under this test, racial classifications that disadvantage racial minorities never pass strict scrutiny, while those that advantaged racial minorities and disadvantaged a racial majority (as in affirmative action) previously survived strict scrutiny, but after the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141 (2023), this is no longer the case for college admissions.

Intermediate Level Scrutiny. When government discriminates or classifies on the basis of sex or gender, the Court uses “intermediate level scrutiny.” This is not as burdensome on government as strict scrutiny but it does have “bite”: Here, the government must show that the discrimination promotes an important government interest and is substantially related to achieving that interest. In these cases, the Court is sensitive to the improper use of sexual stereotypes.

Rational Basis Review. When government discriminates or classifies in connection with economic regulation and business, then the Court uses “rational basis review.” This kind of equal protection review is very deferential to government. When applied, rational basis review almost invariably results in a determination that the government classification is constitutional.

Actual Purpose Review. This kind of review is a relatively recent arrival on the scene. The Supreme Court announced several decades ago that the equal protection clause prohibits government from discriminating against persons just because of who they are. The Court used this principle some years ago, in Romer v. Evans, to strike down a Colorado constitutional amendment that disadvantaged homosexuals: it found that the amendment was actually motivated by animus toward them.

Thus far, actual purpose review has been used sparingly by the Supreme Court. However, it played a role in Obergefell v. Hodges, 576 U.S. 644 (2015), the blockbuster same-sex marriage decision.