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CHAPTER THIRTEEN CONTEMPORARY APPROACHES TO EQUAL PROTECTION s we just saw in Chapter 12, Brown v. Board of time justifying its classification; it will have to show that AEducation brought a legal conclusion to the “separate the classification serves a compelling or important gov- but equal” era. But it raised many questions about how ernment interest. the Court would treat other classifications—for example, Some of this youdistribute have already seen in the cases those based on gender and sexual orientation. involving race discrimination. But because there is only Over time, the Court has established a three-tier one equal protection clause, you might still be wonder- framework for determining whether the government has ing why the contemporary Court has developed three engaged in unconstitutional discrimination. Figure 13-1 different testsor to evaluate claims of discrimination. depicts this framework. Note that the triggering ques- The genesis seems to lie in the very footnote we dis- tion in all equal protection cases is whether the govern- cussed in Chapter 5—Footnote Four in United States ment’s law or action creates a classification that denies v. Carolene Products Co. (1938). After noting that the a right to some people while giving it to others—for Court would give high deference to the government in example, a law that says only men can apply to become economic cases in which classifications were challenged firefighters. In this example, the classification is based as violations of the due process clause or equal protec- on gender. tion clause, the Court dropped a footnote, which read Ultimately, the government must justifypost, its clas- in part: sification, though as you can see from the boxes at the very bottom of the figure, its task will be harder or easier [We need not] enquire whether similar depending on the type of inequality (see also Table IV-1 considerations enter into the review of statutes in the part opener). For almost all classifications—includ- directed at particular religious, or national or ing those based on age and intelligence—the Court will racial minorities: whether prejudice against presume that the law creating the classification is valid as discrete and insular minorities may be a special long as it is rationally related to a legitimate state interest. condition, which tends seriously to curtail the If the classification involves race or national origin, the operation of those political processes ordinarily Court will apply the strict scrutiny test, and if it involves to be relied upon to protect minorities, and 1 copy, gender, the intermediate (or heightened) scrutiny test. which may call for a correspondingly more Either way, the government will have a more difficult searching judicial inquiry. 1Illegitimacy also falls into this category. See, for example, Lalli v. These few sentences contain some important ideas. Lalli (1978), a challenge to a New York law that required illegitimate First, certain groups are more likely than others to be childrennot to provide a proof of paternity before they could inherit the target of discrimination. Perhaps they have been his- from their fathers who died intestate. Legitimate children did not torically subjected to prejudice or animus. Perhaps they have to meet the same requirement. The Court applied an intermedi- ate standard but nonetheless found that the state’s interest in provid- bear discrete or immutable characteristics (for example, ing “for the just and orderly disposition of property at death” justified their skin color), which makes them easier to target for Dothe classification. discriminatory treatment. Or perhaps they are insular, 601 Copyright ©2019 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. Figure 13-1 The Court’s Framework for Analyzing Equal Protection Claims Law Creates a Classification Based on Race/ All Other Gender/Illegitimacy National Origin Characteristics (quasi-suspect class) (suspect class) (non-suspect class) On Its Face Facially Neutral Disproportionate No Disproportionate Impact Impact distribute Discriminatory No Discriminatory Intent Intent or (gender) Intermediate (or Strict Scrutiny Rational Basis Heightened) Law is narrowly post, Scrutiny Scrutiny tailored (necessary) to Law is rationally Law is substantially achieve a compelling related to a legitimate related to an important government interest government interest government interest Note: The authors thank Rebecca Brown, from whom they adapted this chart. meaning that they do not or cannot disperse within soci- legislatures (as they typically would) to draw classifica- ety.2 All in all, these groups may copy,be politically powerless tions that reflect legitimate interests rather than a bad to generate change through normal democratic channels. motive in the form of prejudice. Which takes us to the second idea: because of these dif- Over time, the Court transformed these ideas into ficulties and obstacles, courts may not be able to trust the strict scrutiny test. Only by forcing the government to show that its classification is narrowly tailored— 2These are factors thatnot help the Court to decide on the level of scru- necessary—to achieve a compelling interest can the tiny that it will apply. It has added others with time—for example, Court be sure that the government’s line does not whether the characteristic prompting the discrimination is relevant reflect animus to a group that has, historically, faced to an individual’s “ability to perform or contribute to society.” This discrimination. consideration led the Court to reject heightened scrutiny for “men- tally retarded persons” (see Cleburne v. Cleburne Living Center [1985], Based on the material we just considered on the exDocerpted in this chapter) and for classifications based on age (see country’s long history of race discrimination and on the Massachusetts Board of Retirement v. Murgia [1976]). characteristics identified in Footnote Four, you can see 602 PART FOUR • CIVIL RIGHTS Copyright ©2019 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. why the Court applies strict scrutiny to racial classifica- of the Fourteenth Amendment. Take the case of New York tions. The justices have said that race and national origin Transit Authority v. Beazer (1979). At issue was a policy of are “factors . so seldom relevant to the achievement of the New York City Transit Authority (TA), which operates any legitimate state interest” that they likely “reflect prej- the subway system in New York City. Under the policy, udice and antipathy—a view that those in the burdened the TA refused to hire people who use narcotic drugs. class are not as worthy or deserving as others.”3 Included in the category of narcotics was methadone, a Other groups have asked the Court to apply strict drug used to help treat addiction to heroin. Beazer and scrutiny to laws discriminating against them. The justices several others who were receiving methadone therapy have resisted, but they also have recognized that society brought suit, claiming that the line the TA had drawn— has unfairly disadvantaged at least some other groups even between methadone users and non–methadone users— if they do not meet all the factors identified in Footnote violated the equal protection clause. Four. Gender classifications fall into this category, not To be sure, this classification does not fall into the because women are “discrete and insular minorities” protected categories of race or gender, but, even under but because “statutes distributing benefits and burdens rational basis scrutiny, the government must still pro- between the sexes in different ways very likely reflect vide a justification for the line it has drawn (see Figure outmoded notions of the relative capabilities of men and 13-1). Often the government will turn to concerns about women [rather than meaningful considerations].”4 For public health, efficiency, or safety. This was the case in gender classifications the Court applies intermediate or Beazer. The TA claimed that it needed to discriminate heightened scrutiny, as Figure 13-1 shows. Under this against methadone usersdistribute to ensure a “capable and reli- standard, the Court is not as mistrustful of the govern- able work force.” ment’s motive as it is under strict scrutiny, but it none- It turns out that governments can almost always jus- theless requires the government to supply an “important” tify the line they have drawn. But that doesn’t end the reason for the classification it has drawn or, more recently, matter for the courts. Judges must determine whether 5 or an “exceedingly persuasive justification.” there is an appropriate fit between the government’s clas- Later in this chapter we consider strict and height- sification and the reason it offers for drawing it. Fit is ened scrutiny in more detail. For now, it is important to important because it helps courts determine whether the realize that not all claims of race or gender discrimination government has a different—perhaps more nefarious— will end up in the lower deference categories of strict and goal in mind than the one it says it is trying to achieve. intermediate scrutiny. Suppose that the government says Suppose the TA adopted its policy not out of safety con- that all firefighters must be six feet tall. This seems differ- cerns but rather to disadvantage the poor, who are more ent than a law that allows only men to become firefight- likely than the rich to become heroin addicts and thus ers because it is not drawing a distinction on thepost, face of methadone users.6 This would amount to discrimination the law, even though the law itself may still discriminate that is invidious—arbitrary and unequal treatment—lack- against women who, on average, are shorter than men.

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