Equal Protection Clause
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws." It mandates that individuals in similar situations be treated equally by the law.[1][2][3]
A primary motivation for this clause was to validate the equality provisions contained in the Civil Rights Act of 1866, which guaranteed that all citizens would have the guaranteed right to equal protection by law. As a whole, the Fourteenth Amendment marked a large shift in American constitutionalism, by applying substantially more constitutional restrictions against the states than had applied before the Civil War.
The meaning of the Equal Protection Clause has been the subject of much debate, and inspired the well-known phrase "Equal Justice Under Law". This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision that helped to dismantle racial segregation. The clause has also been the basis for Obergefell v. Hodges which legalized same-sex marriages, along with many other decisions rejecting discrimination against, and bigotry towards, people belonging to various groups.
While the Equal Protection Clause itself applies only to state and local governments, the Supreme Court held in Bolling v. Sharpe (1954) that the Due Process Clause of the Fifth Amendment nonetheless requires equal protection under the laws of the federal government via reverse incorporation.
Application to federal government[edit]
By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing some of the same restrictions on the federal government: "Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive."[63] In Lawrence v. Texas (2003) the Supreme Court added: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests"[64]
Some scholars have argued that the Court's decision in Bolling should have been reached on other grounds. For example, Michael W. McConnell has written that Congress never "required that the schools of the District of Columbia be segregated."[65] According to that rationale, the segregation of schools in Washington D.C. was unauthorized and therefore illegal.
The federal government has at times shared its power to discriminate against noncitizens with states through cooperative federalism. It has done so in the Welfare Reform Act of 1996 and the Children's Health Insurance Program.[66]
Sex, disability, and romantic orientation[edit]
Originally, the Fourteenth Amendment did not forbid sex discrimination to the same extent as other forms of discrimination. On the one hand, Section Two of the amendment specifically discouraged states from interfering with the voting rights of "males", which made the amendment anathema to many women when it was proposed in 1866.[85] On the other hand, as feminists like Victoria Woodhull pointed out, the word "person" in the Equal Protection Clause was apparently chosen deliberately, instead of a masculine term that could have easily been used instead.[86]
In 1971, the U.S. Supreme Court decided Reed v. Reed, extending the Equal Protection Clause of the Fourteenth Amendment to protect women from sex discrimination, in situations where there is no rational basis for the discrimination. That level of scrutiny was boosted to an intermediate level in Craig v. Boren (1976).[87]
The Supreme Court has been disinclined to extend full "suspect classification" status (thus making a law that categorizes on that basis subject to greater judicial scrutiny) for groups other than racial minorities and religious groups. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class. Many commentators have noted, however—and Justice Thurgood Marshall so notes in his partial concurrence—that the Court did appear to examine the City of Cleburne's denial of a permit to a group home for intellectually disabled people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.[88]
The Court's decision in Romer v. Evans (1996) struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination." The Court rejected as "implausible" the dissent's argument that the amendment would not deprive homosexuals of general protections provided to everyone else but rather would merely prevent "special treatment of homosexuals."[89] Much as in City of Cleburne, the Romer decision seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.[90]
In Lawrence v. Texas (2003), the Court struck down a Texas statute prohibiting homosexual sodomy on substantive due process grounds. In Justice Sandra Day O'Connor's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne, and also relied in part on Romer. Notably, O'Connor's opinion did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation.
While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.[91] Other scholars disagree, arguing that "homophobia" is distinct from sexism, in a sociological sense, and so treating it as such would be an unacceptable judicial shortcut.[92]
In 2013, the Court struck down part of the federal Defense of Marriage Act, in United States v. Windsor. No state statute was in question, and therefore the Equal Protection Clause did not apply. The Court did employ similar principles, however, in combination with federalism principles. The Court did not purport to use any level of scrutiny more demanding than rational basis review, according to law professor Erwin Chemerinsky.[93] The four dissenting justices argued that the authors of the statute were rational.[94]
In 2015, the Supreme Court held in Obergefell v. Hodges that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and required all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other jurisdictions.