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The Traditional Standard: Restrained Review.—The traditional standard of review of equal protection challenges of classifications developed largely though not entirely in the context of economic regulation.107 It is still most validly applied there, although it appears in many other contexts as well.

Supplement: [P. 1805, add footnote to sentence appearing after n.107:]

Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide prohibition does not violate Equal Protection Clause by distinguishing between terminally ill patients on life– support systems who are allowed to direct the removal of such systems and patients who are not on life support systems and are not allowed to hasten death by self– administering prescribed drugs).

A more active review has been developed for classifications based on a “suspect” indicium or affecting a “fundamental” interest.

“The Fourteenth Amendment enjoins ‘the equal protection of the laws,’ and laws are not abstract propositions.” Justice Frankfurter once wrote. “They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.”108 The mere fact of classification will not void legislation,109 then, because in the exercise of its powers a legislature has considerable discretion in recognizing the differences between and among persons and situations.110 “Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.”111 Or, more succinctly, “statutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution.”112


How then is the line between permissible and invidious classification to be determined? In Lindsley v. Natural Carbonic Gas Co.,113 the Court summarized one version of the rules still prevailing. “1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” Especially because of the emphasis upon the necessity for total arbitrariness, utter irrationality, and the fact that the Court will strain to conceive of a set of facts that will justify the classification, the test is extremely lenient and, assuming the existence of a constitutionally permissible goal, no classification will ever be upset. But, contemporaneously with this test, the Court also pronounced another lenient standard which did leave to the courts a judgmental role. In this test, “the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”114 Use of the latter standard did in fact result in some invalidations.115

But then, coincident with the demise of substantive due process in the area of economic regulation,116 the Court reverted to the[p.1807]former standard, deferring to the legislative judgment on questions of economics and related matters; even when an impermissible purpose could have been attributed to the classifiers it was usually possible to conceive of a reason that would justify the classification.117 Strengthening the deference was the recognition of discretion in the legislature not to try to deal with an evil or a class of evils all within the scope of one enactment but to approach the problem piecemeal, to learn from experience, and to ameliorate the harmful results of two evils differently, resulting in permissible over– and under–inclusive classifications.118

In recent years, the Court has been remarkably inconsistent in setting forth the standard which it is using, and the results have reflected this. It has upheld economic classifications that suggested impermissible intention to discriminate, reciting at length the Lindsley standard, complete with the conceiving–of–a–basis and the one–step–at–a– time rationale,119 and it has applied this relaxed standard to social welfare regulations.120 In other cases, it has utilized the Royster Guano standard and has looked to the actual goal articulated by the legislature in determining whether the classification had a reasonable relationship to that goal,121 although it has usually ended up upholding the classification. Finally, purportedly applying the rational basis test, the Court has invalidated some[p.1808]classifications in the areas traditionally most subject to total deference.122

Attempts to develop a consistent principle have so far been unsuccessful. In Railroad Retirement Board v. Fritz,123 the Court acknowledged that “[t]he most arrogant legal scholar would not claim that all of these cases cited applied a uniform or consistent test under equal protection principles,” but then went on to note the differences between Lindsley and Royster Guano and chose the former. But, shortly, in Schweiker v. Wilson,124 in an opinion written by a different Justice,125 the Court sustained another classification, using the Royster Guano standard to evaluate whether the classification bore a substantial relationship to the goal actually chosen and articulated by Congress. In between these decisions, the Court approved a state classification after satisfying itself that the legislature had pursued a permissible goal, but setting aside the decision of the state court that the classification would not promote that goal; the Court announced that it was irrelevant whether in fact the goal would be promoted, the question instead being whether the legislature “could rationally have decided” that it would.126


In short, it is uncertain which formulation of the rational basis standard the Court will adhere to.127 In the main, the issues in recent years have not involved the validity of classifications, but rather the care with which the Court has reviewed the facts and the legislation with its legislative history to uphold the challenged classifications. The recent decisions voiding classifications have not clearly set out which standard they have been using.128 Determination in this area, then, must await presentation to the Court of a classification which it would sustain under the Lindsley standard and invalidate under Royster Guano.


107 See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discrimination against Chinese on the West Coast).
108 Tigner v. Texas, 310 U.S. 141, 147 (1980) .
109 Atchison, T. & S.F.R.R. v. Matthews, 174 U.S. 96, 106 (1899) . See also from the same period, Orient Ins. Co. v. Daggs, 172 U.S. 557 (1869) ; Bachtel v. Wilson, 204 U.S. 36 (1907) ; Watson v. Maryland, 218 U.S. 173 (1910) , and later cases. Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552 (1947) ; Goesaert v. Cleary, 335 U.S. 464 (1948) ; McGowan v. Maryland, 366 U.S. 420 (1961) ; Schilb v. Kuebel, 404 U.S. 357 (1971) ; Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980) ; Schweiker v. Wilson, 450 U.S. 221 (1981) .
110 Barrett v. Indiana, 229 U.S. 26 (1913) .
111 Barbier v. Connolly, 113 U.S. 27, 32 (1885) .
112 Ferguson v. Skrupa, 372 U.S. 726, 732 (1963) ; Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955) .
113 220 U.S. 61, 78–79 (1911) , quoted in full in Morey v. Doud, 354 U.S. 457, 463–64 (1957) . Classifications which are purposefully discriminatory fall before the equal protection clause without more. E.g., Barbier v. Connolly, 113 U.S. 27, 30 (1885) ; Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) . Cf. New York City Transit Auth. v. Beazer, 440 U.S. 568, 593 n.40 (1979) . Explicit in all the formulations is that a legislature must have had a permissible purpose, a requirement which is seldom failed, given the leniency of judicial review. But see Zobel v. Williams, 457 U.S. 55, 63–64 (1982) , and id. at 65 (Justice Brennan concurring).
114 F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) . See also Brown–Forman Co. v. Kentucky, 217 U.S. 563, 573 (1910) .
115 E.g., F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) ; Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935) ; Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936) .
116 In Nebbia v. New York, 291 U.S. 502, 537 (1934) , speaking of the limits of the due process clause, the Court observed that “in the absence of other constitutional restrictions, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare.”
117 E.g., Tigner v. Texas, 310 U.S. 141 (1940) ; Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552 (1947) ; Goesaert v. Cleary, 335 U.S. 464 (1948) ; Railway Express Agency v. City of New York, 336 U.S. 106 (1949) ; McGowan v. Maryland, 366 U.S. 420 (1961) .
118 Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955) ; McDonald v. Board of Election Comm’rs, 394 U.S. 802, 809 (1969) ; Schilb v. Kuebel, 404 U.S. 357, 364–65 (1971) ; City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) ; Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981) .
119 City of New Orleans v. Dukes, 427 U.S. 297, 303–04 (1976) ; City of Pittsburg v. Alco Parking Corp., 417 U.S. 369 (1974) .
120 Dandridge v. Williams, 397 U.S. 471, 485–86 (1970) ; Jefferson v. Hackney, 406 U.S. 535, 549 (1972) . See also New York City Transit Auth. v. Beazer, 440 U.S. 568, 587–94 (1979) .
121 E.g., McGinnis v. Royster, 410 U.S. 263, 270–77 (1973) ; Johnson v. Robison, 415 U.S. 361, 374–83 (1974) ; City of Charlotte v. International Ass’n of Firefighters, 426 U.S. 283, 286–89 (1976) . It is significant that these opinions were written by Justices who subsequently dissented from more relaxed standard of review cases and urged adherence to at least a standard requiring articulation of the goals sought to be achieved and an evaluation of the “fit” of the relationship between goal and classification. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 182 (1980) (Justices Brennan and Marshall dissenting); Schweiker v. Wilson, 450 U.S. 221, 239 (1981) (Justices Powell, Brennan, Marshall, and Stevens dissenting). See also New York City Transit Auth. v. Beazer, 440 U.S. 568, 594 (1979) (Justice Powell concurring in part and dissenting in part), and id. at 597, 602 (Justices White and Marshall dissenting).
122 E.g., Lindsey v. Normet, 405 U.S. 56, 74–79 (1972) ; Eisenstadt v. Baird, 405 U.S. 438 (1972) ; James v. Strange, 407 U.S. 128 (1972) ; Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ; City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (rejecting various justifications offered for exclusion of a home for the mentally retarded in an area where boarding homes, nursing and convalescent homes, and fraternity or sorority houses were permitted). The Court in Reed v. Reed, 404 U.S. 71, 76 (1971) , utilized the Royster Guano formulation and purported to strike down a sex classification on the rational basis standard, but, whether the standard was actually used or not, the case was the beginning of the decisions applying a higher standard to sex classifications.
123 449 U.S. 166, 174–79 (1980) . The quotation is id. at 176–77 n.10. The extent of deference is notable, inasmuch as the legislative history seemed clearly to establish that the purpose the Court purported to discern as the basis for the classification was not the congressional purpose at all. Id. at 186–97 (Justice Brennan dissenting). The Court observed, however, that it was “constitutionally irrelevant” whether the plausible basis was in fact within Congress’ reasoning, inasmuch as the Court has never required a legislature to articulate its reasons for enactng a statute. Id. at 179. For a continuation of the debate over actual purpose and conceivable justification, see Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 680–85 (1981) (Justice Brennan concurring), and id. at 702–06 (Justice Rehnquist dissenting). Cf. Schweiker v. Wilson, 450 U.S. 221, 243–45 (1981) (Justice Powell dissenting).
124 450 U.S. 221, 230–39 (1981) . Nonetheless, the four dissenters thought that the purpose discerned by the Court was not the actual purpose, that it had in fact no purpose in mind, and that the classification was not rational. Id. at 239.
125 Justice Blackmun wrote the Court’s opinion in Wilson, Justice Rehnquist in Fritz.
126 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461–70 (1981) . The quoted phrase is at 466.
127 In City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 294 (1982) , the Court observed that it was not clear whether it would apply Royster Guano to the classification at issue, citing Fritz as well as Craig v. Boren, 429 U.S. 190 (1976) , an intermediate standard case involving gender. Justice Powell denied that Royster Guano or Reed v. Reed had ever been rejected. Id. at 301 n.6 (dissenting). See also id. at 296–97 (Justice White).
128 The exception is Reed v. Reed, 404 U.S. 71 (1971) , which, though it purported to apply Royster Guano, may have applied heightened scrutiny. See Zobel v. Williams, 457 U.S. 55, 61–63 (1982) , in which it found the classifications not rationally related to the goals, without discussing which standard it was using.
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