The Equal Protection Clause forbids a state from denying any person the equal protection of the laws, and an equivalent requirement applies to the federal government through the Fifth Amendment. Every law classifies somebody, so the doctrine does not ask whether a line was drawn. It asks what kind of line, and then applies one of three levels of review. Identifying the classification is the whole ball game, because the tier usually decides the outcome.
Rule
- Strict scrutiny. Applies to race, national origin, alienage in most state contexts, and to classifications burdening a fundamental right. The law must be narrowly tailored to a compelling government interest, and the government bears the burden.
- Intermediate scrutiny. Applies to sex and to illegitimacy. The law must be substantially related to an important government interest, and for sex the state must show an exceedingly persuasive justification.
- Rational basis. The default for everything else, including age, disability and economic regulation. The law is upheld if rationally related to any legitimate interest, and the challenger bears the burden.
- Facially neutral laws. A neutral law with a disparate impact gets heightened review only if the plaintiff proves discriminatory purpose, not merely a disparate effect.
- Rational basis with bite. In a handful of cases the Court has invalidated laws under rational basis where the only apparent purpose was hostility toward a group.
Leading cases
- Loving v. Virginia: a ban on interracial marriage was invalid, and racial classifications draw the most rigid scrutiny even where they burden both races.
- Craig v. Boren: a drinking age that differed by sex failed, and the Court articulated the intermediate standard for sex based classifications.
- United States v. Virginia: excluding women from a state military college failed, because the state could not supply an exceedingly persuasive justification.
- City of Cleburne v. Cleburne Living Center, Inc.: a permit requirement aimed at a home for people with intellectual disabilities failed rational basis, because it rested on negative attitudes rather than any legitimate interest.
Where students go wrong
The first mistake is naming the tier without saying why. Identify the classification on the face of the statute first, then the tier follows and the analysis writes itself.
The second is arguing disparate impact alone. Without proof of discriminatory purpose, a neutral law that falls harder on one group is reviewed only for a rational basis.
The third is forgetting who carries the burden. Under strict and intermediate scrutiny the government must justify the law. Under rational basis the challenger must negate every conceivable justification, which is why those claims almost always fail.
FAQ
What makes a classification suspect?
Courts look at a history of purposeful discrimination, whether the trait is immutable and unrelated to ability, and whether the group lacks political power to protect itself.
Does equal protection apply to the federal government?
Yes in substance. The Fifth Amendment's Due Process Clause has been read to impose an equal protection requirement on federal action.
What is rational basis with bite?
An informal label for decisions where the Court applied the deferential standard but still struck the law down, usually because the record showed animus rather than any real government purpose.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.