Yesterday we began our Learning the Law series on equal protection of the law. The basic idea is easy enough to recite: the equal protection principle, found in the Fourteenth Amendment, requires that all persons who are similarly situated must be treated equally before the law. We said that equal protection is really all about how the government classifies us. Today, we pick up where we left off, with a discussion of the kinds of classifications we look for on equal protection review. We also take up the important topic of the prima facie equal protection elements. Our eventual destination is an analytical model much like the one we crafted for substantive due process of law.
The Prima Facie Equal Protection Elements
When we review a law for compliance with the Equal Protection Clause, the first thing we must ask is whether the law classifies people. Classification is the first of three prima facie equal protection elements. That sounds fancy, doesn’t it? All we really mean is that there are three elements that must be proved in order to make out a viable equal protection claim. And classification is the first of those. No classification? The answer is easy. There cannot possibly be an equal protection violation without it.
As it turns out, most laws do classify; some do so facially. Consider, for example, a law that says “No person who is not a citizen shall be eligible to vote in any election for state office.” That law, on its face, divides the world into at least two groups: citizens and non-citizens. If we were analyzing this law on equal protection grounds, we would say the first prima facie element is satisfied and move on to the next step.
In addition to these facial classifications, laws may also implicitly classify us. That is, a law that appears to be facially neutral might actually be hiding one or more classifications. How so? Think about a law that says “No person who is not at least 5 feet 2 inches in height, and at least 125 pounds in weight, shall be eligible to serve as a law enforcement officer in this state.” We can see that this law facially classifies people, based on height and weight. But is there another classification lurking here? On what group is the burden of this law likely to fall most heavily? The answer is women. The discriminatory impact or effect of this law will be felt more often by women than by men since women, on average, are shorter and lighter than men. This, then, is an example of a law that, on its face, is neutral as to gender, but which might have a discriminatory impact or effect upon women.
Once we have concluded that a law classifies persons, we must move on to the remaining two equal protection prima facie elements. They are discriminatory purpose (element 2) and discriminatory effect or impact (element 3). What this means is that in order to make out an equal protection claim, the challenger must show that the government created this law for the purpose of discriminating against the class, and that the effect or impact of the law is to discriminate against the class.
To return to our law enforcement example, suppose a group of women filed an equal protection suit to test the statute hypothesized above. In addition to proving that the law classifies based on gender (element 1), the challengers would have to show that the state created that law for the purpose of discriminating against would-be women law enforcement officers, and that the impact or the effect of the law upon women was discriminatory as compared to men. When doing an equal protection analysis, always keep the three prima facie elements in mind: classification, discriminatory purpose, and discriminatory impact. Without all three, there is no equal protection claim.
Classifications and the Corresponding Rules
In the world of equal protection analysis, we look for three groups of classifications. We mentioned two – suspect classes and quasi-suspect classes – yesterday. The third class, which I usually refer to as the “everything else” class, simply consists of anything that isn’t suspect or quasi-suspect. In other words, it’s a default. If the classification doesn’t fit into groups 1 or 2, then it must belong in group 3.
Suspect classifications are those based upon race or ethnicity, national origin, or citizenship. As we said yesterday, if you find this sort of classification, you’re heading straight to strict scrutiny. These classifications are seen as suspect because, regrettably, we have a long and shameful history in this country of using these characteristics to subordinate, subjugate, and generally disadvantage those who are in no position, legally or otherwise, to defend themselves. When a court encounters a suspect classification, it will call on the government to prove (1) that it has a compelling interest to justify the classification; and (2) that it has used the least restrictive means, or classification, to accomplish its compelling interest. You should, by now, be sufficiently familiar with strict scrutiny to know the probable result: the government loses. If you need a refresher, go back and review the substantive due process posts.
But what if no suspect classification, facial or otherwise, appears? Then you go looking for a quasi-suspect classification, which means a classification based on gender or illegitimacy. Here we find the middle ground between suspect classifications and everything else classifications. Quasi-suspect classifications get heightened judicial scrutiny because history teaches us that we need to be concerned with improper, stereotype-based discrimination grounded in wrong or outdated ideas about the characteristics of the class.
If we find this kind of classification, we apply something called intermediate scrutiny. The government must demonstrate (1) that it has an important interest (compare strict scrutiny – compelling interest; rational basis – legitimate interest) to justify its classification; and (2) that the classification is substantially related to achieving (compare strict scrutiny – no less restrictive classification; rational basis – rationally related) that important interest. You should be able to tell, from the descriptive language alone, that intermediate scrutiny is an easier burden for the government to bear than is strict scrutiny. But it is nowhere near as permissive as rational basis review.
If no suspect or quasi-suspect classification is revealed, then the classification falls into the “everything else” category. These classifications need only survive rational basis review. They are presumed constitutional, and the burden is on the challenger to negate either (1) any legitimate interest to justify the classification; or (2) any rational relationship between the classification and meeting the government’s legitimate interest. Good luck with that.
In tomorrow’s installment, we’ll craft our equal protection analytical model. Space permitting, we’ll also clean up a couple of remaining loose ends relating to discriminatory purpose and effect.