What is Equal Protection? (Posted by Gabe)

Here is the latest question, about Equal Protection:

"The syllabus gives a VERY brief overview and the nutshell book goes into too much detail. I am supposed to be writing a paper on this subject and feel totally unprepared. I am supposed to know the four part analysis of equal protection in relation to homosexuality. Is it correct to assert that homosexuals are not in a suspect class, a quasi-suspect class, a non-suspect class, and that their rights are not fundamental? Any help you could give would be enormously appreciated."

I would state at the outset that I do not feel comfortable answering the question on what it is, or is not, "correct to assert." That is up to you and your studies. I will, though, try to give you some help in the analysis--which can certainly be complex--so that you can figure out what would be the best argument to make.

While the syllabus overview is indeed very brief, it does lay out the four things you need to know to analyze. Those four things are numbered in the syllabus--actions that affect a person, different benefits or burdens, impermissible criteria or fundamental right, and the difference between purposeful and incidental discrimination.

Starting with the basics, constitutional law is about the tests designed to determine whether the government action is permissible or not. There are three, primarily:

--Strict Scrutiny. If the governmental action falls under this test, the burden is on the government to prove that their actions are the least restrictive means to accomplish a compelling state interest. If this test is used, the government action is almost always struck down, because if the private party can show that there is a better way for the government to accomplish its goal, the government loses.

--Intermediate Scrutiny. This one can be a bit fuzzy, but at its core, it means that the government must prove that their actions are substantially related to an important state interest.

--Rational Basis. Under this test, the burden of proof is really on the challenging party, and they must show that the government action is not rationally related to a legitimate state interest. Under this test, the governmental action is almost always upheld--unless it is completely ludicrous.

The key to Equal Protection is knowing which test to use, and the four step approach is designed to help you find exactly that. Take some time to think about it from a logical standpoint, and I think these four criteria will fall into place. Let's run through them in order:

1. Whether the government has taken any action that affects the person. It stands to reason that if the governmental action does not affect people, there can be no Equal Protection violation, because only people need to be equally protected, so to speak. If people are not affected by the law, none of the tests apply--the government action is not a violation of the EP clause.

2. Whether the government action classifies individuals for different legal benefits or
burdens. If the government action classifies everyone exactly the same, everyone is equally protected. Does that make sense? Equal protection is designed to give everyone the same treatment, so if the law does that it does not violate this clause. If the law gives everyone the same treatment, it could potentially be challenged under some other Constitutional provision, but no test is needed for Equal Protection--the action is valid.

3. Whether the government action discriminates on the basis of impermissible criteria or in
violation of a fundamental right. This is where it gets tough, and we'll come back to this one in a minute.

4. Whether the government has discriminated purposefully or incidentally. An example would be helpful here. Say XYZ City has a law that says, "Anyone making less than $20,000 a year must live in ABC Neighborhood." Now, I'm sure you can see that this purposefully discriminates on the basis of poverty--a non-suspect class, as we will discuss. Non-suspect classes give rise to the rational basis test, so a challenger would want to find a better argument. Say that they bring forward statistics that show that 85% of the families affected by this ordinance are African American. Now they are arguing that the ordinance discriminates on the basis of race--and they are right. But the discrimination is incidental; it's a by-product of the ordinance, not a purpose of it. Therefore, despite the incidental discrimination, the rational basis test would still apply.

OK, stop and take a deep breath. If something hasn't made sense so far, go back and re-read it, compare it to your syllabus, and ask questions if you can't figure out what I mean. Once your brain stops doing somersaults, let's move on.

The real "meat" of Equal Protection jurisprudence comes from the delineations of what sort of discrimination is OK in what circumstances. Starting at the foundation level, I'm sure you can already see how the fact that a law discriminates on some basis does not make it an automatic violation of EP. As your syllabus notes, every criminal law is a discrimination against something--if you are convicted of murder, the law is discriminating against you for killing someone. It doesn't take much reasoning to decide that there is no problem with that; without it law would be meaningless.

So when is a discrimination a violation of the Equal Protection Clause? When you are asking that question, in step 3 of the four-part test, I would encourage you to start with a two part question. Your syllabus mentions it, but doesn't clearly explain it, so I'm going to try.

The two part question is simply this: 1) Does the discrimination interfere with the exercise of a fundamental right? and 2) Does the discrimination use impermissible criteria? Let's take each of these in turn.

First, fundamental rights. You will be happy to know that you have already learned about this to a large degree in the last lesson--substantive due process also uses this fundamental rights approach. The only difference is that due process regards violations against an individual while equal protection regards violations against a class of people. With that one distinction in mind, if you understand substantive due process, you understand the fundamental rights prong of equal protection.

Second, impermissible criteria. The Supreme Court has laid out three different types of criteria, which as you know, are suspect, quasi-suspect, and non-suspect. The suspect category is the highest, and gives rise to the strict scrutiny test. Race is really the only time that the court will use this analysis.

While they recognized that race is the "worst" form of discrimination, the Court has also said that there are other categories of discrimination that are "bad." In these quasi-suspect categories, the government has to satisfy the higher burden of the intermediat scrutiny test.

Finally, there are those categories that are benign. The government can't be arbitrary or ludicrous, so it must still meet the rational basis test, but that is rather easy.

So where is all this law in the Constitution? It is certainly not written in there, and the courts have had to struggle with where to draw the line. It has been a hard task for them, and the result is the confusing system that I have attempted to lay out for you here. I hope that this overview gives you a structure that you can use to understand your Nutshell text better.

Good grief, I have written a thesis. Questions are more than welcome, via comment or e-mail.