In our first two equal protection posts, we learned the basic concepts and rules behind equal protection of the law. To make a long story short, it’s all about how the government classifies us, which it must do in order to operate more efficiently. If a law is “one size fits all,” meaning that it applies with equal force to everyone, the odds of a viable equal protection claim are vanishingly slim.
Once you’ve spotted a classification, you must decide what kind of classification you’re dealing with. Suspect classes – those drawn on racial, ethnic, national origin, or citizenship grounds – get strict scrutiny. Quasi-suspect classes make distinctions based on gender or illegitimacy, and they are reviewed using a middle ground called intermediate scrutiny. Then there’s “everything else,” which is a sort of default category for any classification which isn’t suspect or quasi-suspect.
Here in part 3, we’re going to create a somewhat basic, but workable, equal protection analytical model. We do have a couple of issues we need to clean up. Specifically, we need to examine how courts decide whether a classification is treated as one that should get elevated scrutiny. In other words, what criteria do courts apply to decide if a classification belongs in, say, the quasi-suspect group? In addition, we need to spend a bit more time on discriminatory purpose, the second equal protection prima facie element. We’ll do that cleanup work in our fourth and final equal protection post. Now, on to the model!
The Basic Equal Protection Model
There are five steps in our equal protection model. If you’ve not yet seen our substantive due process model and the accompanying flowchart, you’ll find it helpful to check those out now.
First, does the law classify people, explicitly or implicitly?
The first step in our model is to ask whether the law classifies persons, explicitly or implicitly. If the law does classify persons, we continue to step two. If it does not classify people, the equal protection analysis stops. There can be no equal protection claim without classifications. You may have a substantive due process or other constitutional claim, but you can scratch equal protection off the list. Recall that classification is the first of three prima facie elements. It is the challenger’s burden to prove all three.
Second, is the purpose of the law to discriminate against the class, and does the law have a discriminatory impact or effect upon the class?
Discriminatory purpose and discriminatory impact or effect are the last two prima facie elements. We’ll talk more in our next installment about discriminatory purpose; suffice for now to say that this prima facie element often marks the end of an equal protection claim. Courts are reluctant to ascribe improper purpose or motive to legislators, and will require that the challenger prove it. Discriminatory impact or effect is an easier burden to sustain: if the impact upon the class is greater than upon non-members of the class, this element is usually satisfied. If you do find both discriminatory purpose and impact, continue to step three. If either or both element is missing, the equal protection analysis is at an end.
Third, does the law classify on the basis of race or ethnicity, national origin, or citizenship?
As we know, these are suspect classifications. If you do find one of these, go directly to strict scrutiny. The government bears the burden of showing both (1) a compelling interest to justify the classification; and (2) that it has selected the least restrictive means – or classification – to meet its compelling interest. Note that we are concerned with citizenship-based classifications only when those classifications are made by a state. The federal government is authorized, by the text of the Constitution to “establish a uniform rule of naturalization,” which has been interpreted to allow Congress to draw distinctions based on citizenship.
All the usual caveats you already know about apply here. There is no presumption of constitutionality, as we find on rational basis review. The government bears a heavy burden of proof, and will almost certainly lose. As was true with substantive due process analysis, most of these laws get killed on means testing; the court simply finds that a less restrictive classification would have served the government’s ends just as well, and declares the law unconstitutional. If you do not find a suspect classification, continue to step four.
Fourth, does the law classify on the basis of gender or illegitimacy?
Again, these classifications are quasi-suspect. If you do find one of them, the burden shifts to the government to satisfy intermediate scrutiny. In contrast to strict scrutiny, intermediate scrutiny is not as difficult for the government to satisfy. The government must convince the court that it has an important interest to justify the classification, and it must also prove that there is a substantial relationship between means (classification) and ends.
As in the case of strict scrutiny, it is most often means testing that proves fatal. The court is likely to accept the government’s proffered interest, but will find that a less burdensome classification would have served that interest as well. Courts offer the government a bit more leeway on intermediate scrutiny, but the government still has an uphill battle to fight. If there is no quasi-suspect classification at work, continue to the fifth and last step.
Fifth, if the classification is non-suspect, does it substantially impair the exercise of a fundamental right?
Recall that at the end of our substantive due process series, I said that the equal protection model builds on the substantive due process model. This is how it does so. A quick though silly example will illustrate the point.
Suppose the state of Alpha creates a law that says “No person who requires corrective lenses shall marry in this state.” You should recognize that this law facially classifies: it divides the world into two groups – those who need corrective lenses and those who do not. You might also argue that there is an implicit classification here. Poor vision correlates, imperfectly of course, with age. Are impaired vision or age suspect classes? Nope. Are the quasi-suspect? No. These, then, are non-suspect classifications.
But the government has tried to use them to limit the fundamental right to marry. If you’re thinking that such a classification will have to meet strict scrutiny to survive review, give yourself a cookie. That is the rule. If a non-suspect classification substantially impairs the exercise of a fundamental right, the burden shifts to the government to justify that classification under strict scrutiny.
But if there is no fundamental right involved? Then all you have is a non-suspect class, standing alone. That classification will be tested via rational basis review, and the burden of proving the usual rational basis requirements remains on the challenger. In that case, the government almost certainly wins.
So there it is, our basic, five-step equal protection analytical model. I’ve included a link, below, to the model and a few basic points in PowerPoint format. Check back in next time and we’ll wrap up equal protection.