EQUAL PROTECTION OF THE LAWS (Update 2)

The equality value of the equal protection clause is implicated most strongly when the government discriminates against groups. Discrimination on the basis of identifiable group membership, such as race, gender, alienage, birth out of wedlock, or sexual orientation means that all members of the disfavored group are disadvantaged by governmental action because of their group membership. The constitutional permissibility of discrimination on the basis of group membership depends on whether the government can provide an adequate justification for the specific act of discrimination. The matter of adequate justification is influenced in part by the degree of scrutiny called for under the articulated standard of review applicable to discrimination against the particular group. But it is also influenced by the Supreme Court's value judgments about the premises underlying the discrimination.

The paradigmatic form of discrimination on the basis of identifiable group membership in American society has been racial discrimination. The Court has long held that all racial discrimination is suspect and so is subject to the strict scrutiny standard of review. The specific act of racial discrimination must be shown to be "precisely tailored to advance a compelling governmental interest." Applying this exacting standard of review, the Court has held unconstitutional virtually all governmental action discriminating against African Americans and other racial or ethnic minorities in the last half of the twentieth century. However, the Court has also held that the equal protection clause prohibits only intentional racial discrimination. Facially neutral laws that have the demonstrable effect of disadvantaging racial minorities as a group are not subject to constitutional challenge absent evidence of an invidious purpose to discriminate on a racial basis.

The most controverted constitutional issue of racial equality today is the permissibility of race-based affirmative action designed to overcome the inequality that exists between African Americans (and other racialethnic minorities) and whites, inequality that has resulted from a long history of official and unofficial racial discrimination. On the one hand, the preference for racial minorities as a group embodied in affirmative action programs causes individual whites to suffer discrimination because of their race, and so is inconsistent with the principle of formal racial neutrality. On the other hand, this racial preference advances the objective of substantive racial equality. The tension between the principle of formal racial neutrality and the objective of substantive racial equality is reflected in the difficult and often divided Court decisions as to the constitutional permissibility of race-based affirmative action.

The one point on which the Court is agreed is that racial preference is constitutionally permissible when it is precisely tailored to overcome the present consequences of identified past discrimination for which the governmental entity employing racial preference is itself responsible. Since 1990, however, the Court has limited the use of race-based affirmative action for this purpose, emphasizing that there must be a substantial basis in evidence for finding the existence of identified past discrimination. In adarand constructors, inc. V. peÑa (1995), the Court held that racial preference programs adopted by Congress are subject to the same "strict scrutiny" standard of review as racial preference programs adopted by state and local governments, effectively overruling metro broadcasting, inc. V. fcc (1990).

The Court, in shaw v. reno (1993) and its progeny, has also held that when a state seeks to remedy the dilution of minority political power caused by past discrimination in voting, it is not justified in using race as the predominant factor in electoral districting. The state may not draw electoral districts in an irregular form in disregard of "traditional districting criteria" in order to create a legislative district in which racial minority voters are in the majority. There is also a question as to whether the Court will continue to follow its earlier decision in regents of university of california v. bakke (1978), where it held that a public university may use race-conscious admissions criteria in order to achieve a racially diverse student body.

The clear trend in equal protection jurisprudence today is toward a requirement of formal racial neutrality. For the most part, governmental efforts to overcome substantive racial inequality will have to be accomplished by racially neutral means, which are likely to be less effective than race-based affirmative action. This result, interacting with the conclusion that the equal protection clause prohibits only intentional racial discrimination, seriously limits governmental efforts to achieve substantive racial equality in American society.

In times past, classifications on the basis of gender were pervasive in American law, and were based on stereotyped assumptions about men and women and their respective societal roles. These gender-based classifications reinforced male domination and female subordination, but in many of their specific applications they disadvantaged men as well as women. The Court held in craig v. boren (1976) that sex discrimination is subject to "intermediate" scrutiny, and that in order to be upheld, it must be "substantially related to advancing an important governmental interest."

In applying this standard of review, the Court has insisted on an "exceedingly persuasive justification" for any gender-based classification. The Court has found such a justification to exist only where the particular gender-based classification had the purpose and effect of remedying the present consequences of past societal discrimination suffered by women as a group or was related to biological and physical differences between men and women and their different roles in the reproductive process. Because gender-based classifications are constitutionally disfavored, they have generally been eliminated in federal and state laws and replaced with gender-neutral criteria, such as "surviving spouse," "dependent spouse," "custodial parent," and the like. In united states v. virginia (1996), one of the very few cases involving gender-based classifications to come before the Court in recent years, the Court held that Virginia could not constitutionally exclude women from the citizen-soldier training afforded by the Virginia Military Institute, a state-supported military college.

The Court's interpretation of the equal protection clause necessarily influences the political decisions of Congress and the state legislatures with respect to discrimination on the basis of identifiable group membership. Although the Court, applying strict scrutiny, has held that the equal protection clause precludes the states from discriminating against resident aliens with respect to entitlement to governmental benefits, such as welfare, it has also held that Congress's plenary power over immigration and naturalization requires extreme judicial deference to Congress's treatment of resident aliens. When Congress discriminates against resident aliens, for example, by denying them welfare benefits, the deferential rational basis standard of review applies, and such discriminations are routinely held to be constitutionally permissible. This broad constitutional power has played a role in the political process in recent years. In the Welfare Reform Act of 1996, Congress denied many welfare benefits to resident aliens.

The Court's approach to discrimination against non-marital children highlights how the matter of adequate justification is influenced by the Court's value judgments about the premises underlying the discrimination. Saying that it is "illogical and unjust" to penalize out-of-wedlock children for the circumstances of their birth, the Court, applying an articulated "important and substantial relationship" standard of review, has held unconstitutional all of the traditional forms of discrimination against children born out of wedlock, such as denying welfare benefits to a family that includes nonmarital children.

The Court held that discrimination against gay and lesbian persons solely on the basis of their sexual orientation was "arbitrary and irrational" and so was unconstitutional even under the lower scrutiny of the rational basis standard of review. In romer v. evans (1996), the Court, applying this standard of review, held violative of equal protection a Colorado state constitutional provision that excluded discrimination on the basis of sexual orientation from the protection of state and local antidiscrimination laws. Writing for the Court, Justice anthony m. kennedy, said that the law "imposed a disadvantage born of animosity toward the class of persons affected," and that, "[a] law declaring that in general it shall be more difficult for one group of citizens than for others to seek aid from the government itself is a denial of equal protection of the laws in the most literal sense." Justice antonin scalia, in dissent, accused the majority of taking sides in a "culture war," and said that Colorado was entitled to enact a law expressing the view that homosexuality was "morally wrong and socially harmful."

The Court's opinion in Romer reflects a strong commitment to the value of equality and makes clear that the constitutional guarantee of equal protection forbids government to discriminate against gay and lesbian persons solely because of their status as members of a disfavored group. Any laws that disadvantage persons because of their sexual orientation thus must be justified on grounds that are independent of majority hostility. In this connection, Congress has excluded openly homosexual persons from serving in the Armed Forces. The government has generally succeeded in persuading lower courts that this exclusion is rationally related to legitimate military concerns. The constitutionality of this exclusion has not yet been decided by the Court.

Robert A. Sedler
(2000)

(see also: Adoption, Race, and the Constitution; Antidiscrimination Legislation; Asian Americans and the Constitution; Race, Reproduction, and Constitutional Law; Sexual Orientation and the Armed Forces.)

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