Equal Protection

Equal Protection in the United States

Equal Protection Clause

Prohibition of discrimination and the use of unreasonable classifications. The protection is drawn from the Equal Protection Clause of the Fourteenth Amendment. This clause was added to the Constitution after the Civil War. At the time of ratification, the protection was intended to guarantee former slaves equal treatment under the law as well as certain basic civil rights. The Supreme Court made an effort to confine the language of the clause to blacks in the Slaughterhouse Cases (16 Wallace 36: 1873). Slaughterhouse held that the clause was to be used when state laws “discriminated with gross injustice and hardship” against “newly emancipated negroes.” The Court said federal authority could be used only when racial discrimination resulted from the actions of a state because the coverage of the clause was aimed only at “that race and that emergency.”

After confining the clause to racial classifications, the Court set out in subsequent years to define the nature of the protections afforded blacks under the clause. In 1883, the Court struck down the Civil Rights Act of 1875, ruling that the Equal Protection Clause applied only to state actions. The holding in the Civil Rights Cases (103 U.S. 3: 1883) was consistent with the Court’s position in Slaughterhouse. It placed private acts of discrimination outside the reach of the clause and the courts. The Court categorically rejected the argument that the clause authorized Congress to “create a code of municipal law for the regulation of private rights.” The Fourteenth Amendment authorized only corrective, rather than general, legislation that “may be necessary and proper for counteracting such laws as the State may adopt.”

Regulation of private discrimination, if it were to occur at all, was left to state discretion and initiative. Soon thereafter a comprehensive network of state segregation statutes or Jim Crow laws was enacted. The Court found the segregative approach to be constitutional in Plessy v. Ferguson (163 U.S. 537: 1896), using the separate but equal doctrine. The Court said Jim Crow statutes only made a legal distinction between races and had “no tendency to destroy the legal equality of the two races.” No constitutional provision could go further and “abolish distinction based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.” Little attention was paid to the equiva- lent-treatment-under-separate-circumstances idea until certain professional education cases came to the Court in the 1950s. Then the equality of the separate but equal doctrine was carefully examined. The doctrine was struck down in the landmark decision of Brown v. Board of Education I (347 U.S. 483: 1954).

The Court found that racial segregation imposed by law materially interfered with equal educa-tional opportunity. Subsequently the Court used the Equal Protection Clause to require that affirmative steps be taken to desegregate where constitutional violations could be shown. The authority of the federal courts to mandate relief in such situations was utilized extensively. The Supreme Court went on to hold that race can be a permissible consideration in university admission procedures and in establishing policies extending preferential treatment to those subjected to past discrimination. The state action requirement still provides some insulation for private discrimination, however, even though the Court has become more receptive to claims that private discriminators are acting closely enough to state authority to be reached. While softening the line of demarcation between public and private acts, the Court has kept purely private discrimination outside the scope of the equal Protection Clause and has modified the nature of state action criteria by holding that prohibited behavior turns on discriminatory intent rather than discriminatory impact.

Analysis and Relevance

Addition of the Equal Protection Clause to the Constitution had only a limited impact on public policy for many years. It was reserved exclusively for racial discrimination and was not always aggressively applied even in that context. The Due Process Clause of the Fourteenth Amendment proved to be of far greater importance as a means of examining the reasonableness of state legislation. The character of equal protection began to change in the post-New Deal period, however, as the Court became more extensively involved with civil liberties questions. The Warren Court, in particular, began to consider application of the Equal Protection Clause to classifications other than race. The expanding scope of the clause is sometimes called the “new” equal protection. Because much legislation engages in some form of classification, the clause became an attractive vehicle for challenges. The clause does not preclude the use of classifications. It merely requires that a classification be reasonable.

The main problem of the “new” equal protection is that of distinguishing reasonable and permissible classifications from arbitrary and impermissible ones. Legislatures are generally afforded wide discretion in making classifications. Legislative classifications are typically evaluated by the rationality test, which is a standard reflecting the Court’s understanding that the drawing of lines that create distinctions is peculiarly a legislative task as well as an unavoidable one. Classifications are presumed to be valid under this approach and need not achieve perfection. If the legislative objective is legitimate, a classification may be used as long as it rationally relates to its objective. This doctrine places the burden of proof on the party claiming that the legislation has no rational or reasonable basis. Under certain circumstances, a classification may be subjected to the strict scrutiny standard, a closer examination requiring a state to show more than reasonableness for a classification scheme. The state must demonstrate a serious need or a compelling interest that can be addressed only by use of the challenged classification. Thus the burden of proof shifts to the state in cases where strict or close scrutiny is used.

The strict scrutiny standard applies when the classification impinges on a fundamental right, understood as a right expressly protected, such as freedom of speech, religious exercise, or the right to vote. Or a fundamental right may be a right fashioned by implication, such as the right to cross state lines or the right to have an abortion. In Shapiro v. Thompson (394 U.S. 618:1969), the Court struck down a residency requirement for public assistance benefits because the classification inhibited movement of persons from state to state. The Court said a classification that touches on the fundamental right of interstate movement is “patently unconstitutional.” Similarly, interference with the fundamental right of an unimpaired and undiluted vote prompted the Court to develop the one person-one vote principle in legislative apportionment cases. The close scrutiny standard also applies if the classification is “suspect.” A suspect class is one that is saddled with such disabilities, is the recipient of such purposeful unequal treatment over time, or occupies such a politically powerless position as to require extraordinary protection within the political process.

Classifications based on race and alienage are considered to be inherently suspect. The racially conscious Affirmative Action (U.S.) policies upheld by the Court have demonstrated a compelling interest served by classification. If a classifica-tion is to be used in such situations, it must also be precisely drawn or carefully tailored, and it must employ the least drastic means possible to achieve its particular legislative objectives. The Court has stricken a number of gender-based classifications, but to date has not found gender to be a suspect class. Some members of the Court have suggested that gender receive heightened, although not strict, scrutiny. Neither are such classifications as age, illegitimacy, or wealth or poverty considered to be suspect, although the Court has required that indigent criminal defendants be entitled to appointed counsel and free transcripts for appeal. The “new” equal protection has dramatically altered the scope of the Equal Protection Clause, and it is likely that additional changes in this policy area will be forthcoming.

Notes and References

  1. Definition of Equal Protection from the American Law Dictionary, 1991, California

Crack Cocaine and Equal Protection

According to the Encyclopedia of the American Constitution, during the 1980s, the federal government and many states adopted particularly harsh sentences for possessing or trafficking in crack cocaine. This sentencing has become controversial because it is borne largely by African American defendants.

Equal Protection

Leading Case Law

Among the main judicial decisions on this topic:

Grutterv. Bollinger

Information about this important court opinion is available in this American legal Encyclopedia.


See Also

  • Constitutional Law
  • Individual Rights
  • Due Process
  • Equal Protection

Equal Protection Background

Equal Protection Background


See Also


Affirmative Action (Judicial Effects and Policies), 290; State Action (Judicial Effects and Policies).

Acquired Immune Deficiency Syndrome; Age Discrimination; Baker v. Carr; Bradwell v. Illinois; Capital Punishment; Civil Rights Acts; Civil Rights Cases; Disability Discrimination; Gay and Lesbian Rights; Japanese American Evacuation Cases; Jim Crow Laws; Ku Klux Klan Act; Marshall, Thurgood; Right to Counsel; School Desegregation; Voting Rights Act of 1965; Warren, Earl.

Affirmative Action; Brown v. Board of Education, 1954; Brown v. Board of Education, 1955; Civil Rights; Civil Rights Movement, U.S.; Constitution; Desegregation; Reconstruction Era; Segregation; Separate-but-Equal; Supreme Court.

Further Reading (Books)

Abraham, Henry J., and Barbara A. Perry. 2003. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas.

Baer, Judith A. 1983. Equality Under the Constitution: Reclaiming the Fourteenth Amendment. Ithaca, NY: Cornell University Press.

McWhirter, Darien A. 1995. Equal Protection. Phoenix, AZ: Oryx Press.

Malia Reddick

Further Reading (Articles)

Equal protection, AZ Daily Star; March 30, 2003

Equal protection’s antinomies and the promise of a co-constitutive approach., Cornell Law Review; July 1, 2000; Nice, Julie A.

Calif. judge was unequivocal — Equal protection key to gay- marriage ruling, The Commercial Appeal (Memphis, TN); August 6, 2010; Paul Elias

The proposed Equal Protection fix for abortion law: Reflections on citizenship, gender, and the Constitution, Harvard Journal of Law & Public Policy; April 1, 1995; Allen, Anita L

STATE DEPT.: EQUAL PROTECTION ESSENTIAL COMPONENT OF RULE OF LAW, US Fed News Service, Including US State News; January 20, 2006

The Equal Protection Clause and Immutability: The Characteristics of Suspect Classifications, The University of Memphis Law Review; April 1, 2010; Gentithes, Michael

The Equal Protection Implications of Government’s Hateful Speech, William and Mary Law Review; October 1, 2012; Norton, Helen

The Lost History of Governance and Equal Protection, Duke Law Journal; March 1, 2009; Nourse, Victoria F. Maguire, Sarah A.

Equal protection, class legislation, and colorblindness., Michigan Law Review; November 1, 1997; Saunders, Melissa L.

Flunking the Class-of-One/failing Equal Protection, William and Mary Law Review; November 1, 2013; Araiza, William D.

Foes of Ohio Issue 1 may sue; say it violates U.S. Constitution Marriage amendment would deny equal protection, group says, Dayton Daily News (Dayton, OH); November 4, 2004; Laura A. Bischoff lbischoff@DaytonDailyNews.com

Fourteenth Amendment – Equal Protection: The Supreme Court’s Prohibition of Gender-Based Peremptory Challenges, Journal of Criminal Law and Criminology; March 22, 1995; Deverman, Beth A.

Nonimmigrants, Equal Protection, and the Supremacy Clause, Brigham Young University Law Review; November 1, 2010; Hess, Justin

Fourteenth Amendment–Equal protection: The Supreme Court’s prohibition of gender-based peremptory challenges, Journal of Criminal Law and Criminology; April 1, 1995; Deverman, Beth A

Equal Protection of the Laws, Encyclopedia of the American Constitution; January 1, 2000

Equal Protection of the Law, Governments of the World: A Global Guide to Citizens’ Rights and Responsibilities; January 1, 2006

An Equal Protection Standard for National Origin Subclassifications: The Context That Matters, Washington Law Review; November 1, 2007; Rivera, Jenny

Same-Sex Marriage: A Threat to Tiered Equal Protection Doctrine?, St. John’s Law Review; October 1, 2008; Ewing, Randall P. JR.

A Close Call in Court for Equal Protection; the Drive for Equal Outcomes Is Held in Check, for Now, The Washington Times (Washington, DC); April 28, 2014

Equal Protection – Sexual Orientation – Kansas Supreme Court Invalidates Unequal Punishments for Homosexual and Heterosexual Teenage Sex Offenders, Harvard Law Review; May 1, 2006

Equal Protection: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Equal Protection. This part provides references, in relation to Equal Protection, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Equal Protection by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Equal Protection and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Equal Protection or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Equal Protection and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Equal Protection. Finding these decisions can be challenging. In many cases, researchers about Equal Protection should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Equal Protection when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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