At this point, we’ve build our equal protection analytical model. Really, that model is just the substantive due process model with classifications – suspect, quasi-suspect, and everything else – layered on top. Keep in mind, too, our three prima facie equal protection elements. The challenger must show that the law classifies persons, that the classification was drawn with a purpose to discriminate against the class, and that the impact or effect of the classification is to discriminate against the class. Only if those three elements are present to do then need to figure out what kind of classification is at issue.
With the model complete, we need to clean up a couple of points. In this installment, we focus on two questions. First, how does a court decide whether a classification is suspect or quasi-suspect? In other words, what factors must we examine to decide whether a classification must satisfy some form of elevated scrutiny? And second, how does a court decide whether a classification was created with a discriminatory purpose in mind? We wrap up our equal protection discussion with these two topics.
There can be no prima facie equal protection claim unless the challenger shows that a purpose to discriminate was at least one factor motivating the classification. Note, critically, that discrimination need not have been the only purpose, or even the primary purpose, for the classification; as long as a purpose to discriminate is shown, that will suffice. If the law facially classifies, then proving discriminatory purpose is an easier task. This makes a bit of sense, actually. If a legislature fashions a classification and expressly names the class, it seems only fair that we should infer a purpose to treat the class differently from all others.
Where proving discriminatory purpose can get dicey is when a law appears to be facially neutral, but with one or more classifications implied. When that happens, circumstantial evidence of purpose may be the only evidence that is available. What factors will a court consider? Here are those that most often make the list:
- Does the law deviate substantively from what might normally be expected? For example, assume that an organization dedicated to building low-income, multi-family housing asks a local zoning board to zone a parcel of land as being for multi-family uses. Assume further that our hypothetical parcel is situated in an area that is already, for the most part, zoned for multi-family uses. Assume that the board denies the zoning request, and instead designates the parcel as being permanently dedicated to non-residential recreational uses. A substantive deviation from the norm like this would be a factor courts would look to, among others.
- Did the procedures used to create the law differ procedurally from what might normally be expected? To continue with our hypothetical, a request for a zoning law might normally follow a course that included one or more public readings, an opportunity for written or oral comments from county residents, and a session where the proposal is debated by members of the zoning board. Assume that in this instance, the zoning board reads the proposed ordinance, opens the floor for a few minutes of comments, and then immediately votes to deny the request. This kind of procedural irregularity can suggest that some members of the zoning board had an improper purpose in mind when they defeated the request.
- What will be the impact upon the class of the law? Discriminatory impact or effect can be circumstantial proof of discriminatory purpose. Indeed, impact is usually the first factor courts look to. But be careful here. Rarely is discriminatory impact or effect, standing alone, sufficient to prove discriminatory purpose. Only if the impact is so skewed or lopsided that no other conclusion is reasonably possible is a court likely to find that impact by itself is enough to establish a purpose to discriminate.
- Is there a history of discrimination or mistreatment of the class? History is an important consideration, particularly when discrimination against one or more historically disfavored groups is an issue. A history of institutional discrimination against the class in question may point to the act in question being likewise motivated by discriminatory purpose.
The question we’re trying to answer here is whether discrimination was a motivating factor – not the motivating factor, or the primary motivating factor, or even a significant motivating factor. If so, discriminatory purpose has been shown. You should be aware, though, that courts are often reluctant to impute improper purposes or motives to the government, so establishing discriminatory purpose can be a real uphill climb.
Suspect and Quasi-Suspect Classes
If you look at our suspect classes, you should be able to discern an organizing principle at work. Race, ethnicity, national origin, and citizenship are associated with a long history of invidious discrimination, to such an extent that when we see groupings like these today, we immediately become suspicious. In our not-so-distant past, skin color and ancestry were factors that resulted in the most blatant and overt forms of discrimination, often with the expressed or implied approval of the government or its officials. Classifications like these are suspect, and rightly are subjected to the most demanding form of scrutiny – strict scrutiny – when judging their constitutionality. For example, the Supreme Court has made it clear that racial classifications always get strict scrutiny, whether they are drawn by the federal government or a state.
Quasi-suspect classifications are also associated with a history of discrimination, but not the same kind of invidious discrimination we see with suspect classes. In order to decide whether a class should be considered quasi-suspect, courts will examine factors like these:
- Has the class been subject to a history of discrimination? Here too, history is key. If some group has historically been the target of discriminatory treatment, that factor weighs in favor of more searching judicial review.
- Is the class one that, historically, has been politically powerless or has been ignored by lawmakers? Our constitutional system presumes that the way we influence public policy and protect our interests is by participating in the political process. But if that process is closed off to a group, then the group’s members will find it difficult or impossible to advocate for their rights and secure the passage of favorable laws (or at the very least, secure the defeat of unfavorable laws).
- Are there characteristics that set the class apart from others, and that might justify disparate treatment of the class? To take a couple of simple examples, we do not allow children to drive, because they lack the physical and emotional maturity to safely operate an auto. Those factors are real, and they justify the differing treatment of children. But does sexual orientation impact one’s ability to safely drive? Of course not. Were we to see sexual orientation used as a basis to deny driver’s licenses, we would naturally suspect that sexual orientation is being used merely as a proxy to discriminate.
These are among the factors that courts often look to in deciding whether a class should be deemed quasi-suspect. Having said all of that, note that courts are very unlikely to recognize new suspect or quasi-suspect classes. The present lineup has been in place for decades, and the Supreme Court shows no signs of adding to these groups. Even Justice Kennedy, a strong supporter of civil rights for gays and lesbians, never showed any inclination to name sexual orientation as a new quasi-suspect class.
That’s it for equal protection. Next up on learning the law: judicial review.
By Dan Ray