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CRS Annotated Constitution

Fourteenth Amendment -- Table of ContentsPrev | Next
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION AND RACE

Capital Punishment

In McCleskey v. Kemp94 the Court rejected an equal protection claim of a black defendant who received a death sentence following conviction for murder of a white victim, even though a statistical study showed that blacks charged with murdering whites were[p.1858]more than four times as likely to receive a death sentence in the state than were defendants charged with killing blacks. The Court distinguished Batson v. Kentucky by characterizing capital sentencing as “fundamentally different” from jury venire selection; consequently, reliance on statistical proof of discrimination is less rather than more appropriate.95 “Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.”96 Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination; jurors may not be required to testify as to their motives, and for the most part prosecutors are similarly immune from inquiry.97

FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION AND RACE

Housing

Buchanan v. Warley98 invalidated an ordinance which prohibited blacks from occupying houses in blocks where the greater number of houses were occupied by whites and which prohibited whites from doing so where the greater number of houses were occupied by blacks. Although racially restrictive covenants do not themselves violate the equal protection clause, the judicial enforcement of them, either by injunctive relief or through entertaining damage actions, does violate the Fourteenth Amendment.99 Referendum passage of a constitutional amendment repealing a “fair housing” law and prohibiting further state or local action in that direction was held unconstitutional in Reitman v. Mulkey,100 though on somewhat ambiguous grounds, while a state constitutional requirement that decisions of local authorities to build low–rent housing projects in an area must first be submitted to referendum, although other similar decisions were not so limited, was[p.1859]found to accord with the equal protection clause.101 Private racial discrimination in the sale or rental of housing is subject to two federal laws prohibiting most such discrimination.102 Provision of publicly assisted housing, of course, must be on a nondiscriminatory basis.103


Footnotes

94 481 U.S. 279 (1987) . The decision was 5–4, with Justice Powell’s opinion of the Court being joined by Chief Justice Rehnquist and by Justices White, O’Connor, and Scalia, and with Justices Brennan, Blackmun, Stevens, and Marshall dissenting.
95 481U.S. at 294 481U.S. at 294. Dissenting Justices Brennan, Blackmun and Stevens challenged this position as inconsistent with the Court’s usual approach to capital punishment, in which greater scrutiny is required. Id. at 340, 347–48, 366.
96 Id. at 297. Discretion is especially important to the role of a capital sentencing jury, which must be allowed to consider any mitigating factor relating to the defendant’s background or character, or to the nature of the offense; the Court also cited the “traditionally ‘wide discretion”’ accorded decisions of prosecutors. Id. at 296.
97 The Court distinguished Batson by suggesting that the death penalty challenge would require a prosecutor “to rebut a study that analyzes the past conduct of scores of prosecutors” whereas the peremptory challenge inquiry would focus only on the prosecutor’s own acts. 481U.S. at 296 481U.S. at 296 n.17.
98 245 U.S. 60 (1917) . See also Harmon v. Tyler, 273 U.S. 668 (1927) ; Richmond v. Deans, 281 U.S. 704 (1930) .
99 Shelley v. Kraemer, 334 U.S. 1 (1948) ; Hurd v. Hodge, 334 U.S. 24 (1948) ; Barrows v. Jackson, 346 U.S. 249 (1953) . Cf. Corrigan v. Buckley, 271 U.S. 323 (1926) .
100 387 U.S. 369 (1967) .
101 James v. Valtierra, 402 U.S. 137 (1971) . The Court did not perceive that either on its face or as applied the provision was other than racially neutral. Justices Marshall, Brennan, and Blackmun dissented. Id. at 143.
102 Civil Rights Act of 1866, 14 Stat. 27 , 42 U.S.C. Sec. 1982 , see Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) , and Title VIII of the Civil Rights Act of 1968, 82 Stat. 73 , 42 U.S.C. Sec. 3601 et seq.
103 See Hills v. Gautreaux, 425 U.S. 284 (1976) .
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