CRS Annotated Constitution

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The New Standards: Active Review.—When government legislates or acts either on the basis of a “suspect” classification or with regard to a “fundamental” interest, the traditional standard of equal protection review is abandoned, and the Court exercises a “strict scrutiny.” Under this standard government must demonstrate a high degree of need, and usually little or no presumption favoring the classification is to be expected. After much initial controversy within the Court, it has now created a third category, finding several classifications to be worthy of a degree of “intermediate” scrutiny requiring a showing of important governmental purposes and a close fit between the classification and the purposes.

Paradigmatic of “suspect” categories is classification by race. First in the line of cases dealing with this issue is Korematsu v. United States,129 concerning the wartime evacuation of Japanese– Americans from the West Coast, in which the Court said that because only a single ethnic–racial group was involved the measure was “immediately suspect” and subject to “rigid scrutiny.” The school segregation cases130 purported to enunciate no per se rule, however, although subsequent summary treatment of a host of segregation measures may have implicitly done so, until in striking down state laws prohibiting interracial marriage or cohabitation the Court declared that racial classifications “bear a far heavier burden of justification” than other classifications and were invalid[p.1810]because no “overriding statutory purpose”131 was shown and they were not necessary to some “legitimate overriding purpose.”132 “A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.”133 Remedial racial classifications, that is, the development of “affirmative action” or similar programs that classify on the basis of race for the purpose of ameliorating conditions resulting from past discrimination, are subject to more than traditional review scrutiny, but whether the highest or some intermediate standard is the applicable test is uncertain.134 A measure which does not draw a distinction explicitly on race but which does draw a line between those who seek to use the law to do away with or modify racial discrimination and those who oppose such efforts does in fact create an explicit racial classification and is constitutionally suspect.135

Toward the end of the Warren Court, there emerged a trend to treat classifications on the basis of nationality or alienage as suspect,136 to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review,137 and to pass on statutory and administrative treatments of illegitimates inconsistently.138 Language in a number of opinions appeared to suggest that poverty was a suspect condition, so that treating the poor adversely might call for heightened equal protection review.139


However, in a major evaluation of equal protection analysis early in this period, Justice Powell for the Court utilized solely the two–tier approach, determining that because the interests involved did not occasion strict scrutiny the Court would thus decide the case on minimum rationality standards.140 Decisively rejected was the contention that a de facto wealth classification, with an adverse impact on the poor, was either a suspect classification or merited some scrutiny other than the traditional basis,141 a holding that has several times been strongly reaffirmed by the Court.142 But the Court’s rejection of some form of intermediate scrutiny did not long survive.

Without extended consideration of the issue of standards, the Court more recently adopted an intermediate level of scrutiny, perhaps one encompassing several degrees of intermediate scrutiny. Thus, gender classifications must, in order to withstand constitutional challenge, “serve important governmental objectives and must be substantially related to achievement of those objectives.”143 And classifications that disadvantage illegitimates are[p.1812]subject to a similar though less exacting scrutiny of purpose and fit.144 This period also saw a withdrawal of the Court from the principle that alienage is always a suspect classification, so that some discriminations against aliens based on the nature of the political order, rather than economics or social interests, need pass only the lenient review standard.145

Expansion of the characteristics which when used as a basis for classification must be justified by a higher showing than ordinary economic classifications has so far been resisted, the Court holding, for example, that age classifications are neither suspect nor entitled to intermediate scrutiny.146 While resisting creation of new suspect or “quasi–suspect” classifications, however, the Court may nonetheless apply the Royster Guano rather than the Lindsley standard of rationality.147

The other phase of active review of classifications holds that when certain fundamental liberties and interests are involved, government classifications which adversely affect them must be justified by a showing of a compelling interest necessitating the classification and by a showing that the distinctions are required to further the governmental purpose. The effect of applying the test, as in the other branch of active review, is to deny to legislative judgments the deference usually accorded them and to dispense with the general presumption of constitutionality usually given state classifications.148


It is thought149 that the “fundamental right” theory had its origins in Skinner v. Oklahoma ex rel. Williamson,150 in which the Court subjected to “strict scrutiny” a state statute providing for compulsory sterilization of habitual criminals, such scrutiny being thought necessary because the law affected “one of the basic civil rights.” In the apportionment decisions, Chief Justice Warren observed that “since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”151 A stiffening of the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility152 and the phrase “compelling state interest” was used several times in Justice Brennan’s opinion in Shapiro v. Thompson.153 Thereafter, the phrase was used in several voting cases in which restrictions were voided, and the doctrine was asserted in other cases.154

While no opinion of the Court attempted to delineate the process by which certain “fundamental” rights were differentiated from others,155 it was evident from the cases that the right to vote,156 the right of interstate travel,157 the right to be free of wealth distinctions in the criminal process,158 and the right of procreation159 were at least some of those interests that triggered active review when de jure or de facto official distinctions were made with respect to them. This branch of active review the Court also sought to rationalize and restrict in Rodriguez,160 which involved both a claim of de facto wealth classifications being suspect and a claim that education was a fundamental interest so that affording less of it to people because they were poor activated the compelling state interest standard. The Court readily agreed that education was an important value in our society. “But the importance of a service performed by the State does not determine whether it must be re[p.1814]garded as fundamental for purposes of examination under the Equal Protection Clause. . . . [T]he answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.”161 A right to education is not expressly protected by the Constitution, continued the Court, and it was unwilling to find an implied right because of its undoubted importance.

But just as Rodriguez was unable to prevent the Court’s adoption of a “three–tier” or “sliding–tier” standard of review in the first phase of the active–review doctrine, so it did not by stressing the requirement that an interest be expressly or impliedly protected by the Constitution prevent the addition of other interests to the list of “fundamental” interests. The difficulty was that the Court decisions on the right to vote, the right to travel, the right to procreate, as well as others, premise the constitutional violation to be of the equal protection clause, which does not itself guarantee the right but prevents the differential governmental treatment of those attempting to exercise the right.162 Thus, state limitation on the entry into marriage was soon denominated an incursion on a fundamental right which required a compelling justification.163 While denials of public funding of abortions were held to implicate no fundamental interest— abortion being a fundamental interest—and no suspect classification— because only poor women needed public funding164—other denials of public assistance because of illegitimacy, alienage, or sex have been deemed governed by the same standard of review as affirmative harms imposed on those grounds.165 And in Plyler v. Doe,166 the complete denial of education to the children of illegal aliens was found subject to intermediate scrutiny and invalidated.


129 323 U.S. 214, 216 (1944) . In applying “rigid scrutiny,” however, the Court was deferential to the judgment of military authorities, and to congressional judgment in exercising its war powers.
130 Brown v. Board of Education, 347 U.S. 483 (1954) .
131 McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964) .
132 Loving v. Virginia, 388 U.S. 1, 11 (1967) . In Lee v. Washington, 390 U.S. 333 (1968) , it was indicated that preservation of discipline and order in a jail might justify racial segregation there if shown to be necessary.
133 Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979) , quoted in Washington v. Seattle School Dist., 458 U.S. 457, 485 (1982) .
134 Regents of the Univ. of California v. Bakke, 438 U.S. 265, 287–20 (1978) (Justice Powell announcing judgment of Court) (suspect), and id. at 355–79 (Justices Brennan, White, Marshall, and Blackmun concurring in part and dissenting in part) (intermediate scrutiny); Fullilove v. Klutznick, 448 U.S. 448, 491–92 (1980) (Chief Justice Burger announcing judgment of Court) (“a most searching examination” but not choosing a particular analysis), and id. at 495 (Justice Powell concurring), 523 (Justice Stewart dissenting) (suspect), 548 (Justice Stevens dissenting) (searching scrutiny).
135 Hunter v. Erickson, 393 U.S. 385 (1969) ; Washington v. Seattle School Dist., 458 U.S. 457 (1982) .
136 Graham v. Richardson, 403 U.S. 365, 371–72 (1971) .
137 Reed v. Reed, 404 U.S. 71 (1971) ; for the hint, see Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972) .
138 See Levy v. Louisiana, 391 U.S. 68 (1968) (strict review); Labine v. Vincent, 401 U.S. 532 (1971) (lenient review); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972) (modified strict review).
139 Cf. McDonald v. Board of Election Comm’rs, 394 U.S. 802, 807 (1969) ; Bullock v. Carter, 405 U.S. 134 (1972) . See Shapiro v. Thompson, 394 U.S. 618, 658–59 (1969) (Justice Harlan dissenting). But cf. Lindsey v. Normet, 405 U.S. 56 (1972) ; Dandridge v. Williams, 397 U.S. 471 (1970) .
140 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973) .
141 Id. at 44–45. The Court asserted that only when there is an absolute deprivation of some right or interest because of inability to pay will there be strict scrutiny. Id. at 20.
142 E.g., United States v. Kras, 409 U.S. 434 (1973) ; Maher v. Roe, 432 U.S. 464 (1977) ; Harris v. McRae, 448 U.S. 297 (1980) .
143 Craig v. Boren, 429 U.S. 190, 197 (1976) . Justice Powell noted that he agreed the precedents made clear that gender classifications are subjected to more critical examination than when “fundamental” rights and “suspect classes” are absent, id. at 210 (concurring), and added: “As is evident from our opinions, the Court has had difficulty in agreeing upon a standard of equal protection analysis that can be applied consistently to the wide variety of legislative classifications. There are valid reasons for dissatisfaction with the ‘two–tier’ approach that has been prominent in the Court’s decisions in the past decade. Although viewed by many as a result– oriented substitute for more critical analysis, that approach—with its narrowly limited ‘upper tier’—now has substantial precedential support. As has been true of Reed and its progeny, our decision today will be viewed by some as a ‘middle–tier’ approach. While I would not endorse that characterization and would not welcome a further subdividing of equal protection analysis, candor compels the recognition that the relatively deferential ‘rational basis’ standard of review normally applied takes on a sharper focus when we address a gender–based classification. So much is clear from our recent cases.” Id. at 210, n.*. Justice Stevens wrote that in his view the two–tiered analysis does not describe a method of deciding cases “but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion.” Id. at 211, 212. Chief Justice Burger and Justice Rehnquist would employ the rational basis test for gender classification. Id. at 215, 217 (dissenting). Occasionally, because of the particular subject matter, the Court has appeared to apply a rational basis standard in fact if not in doctrine, E.g., Rostker v. Goldberg, 453 U.S. 57 (1981) (military); Michael M. v. Superior Court, 450 U.S. 464 (1981) (application of statutory rape prohibition to boys but not to girls). Four Justices in Frontiero v. Richardson, 411 U.S. 677, 684–87 (1973) , were prepared to find sex a suspect classification, and in Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n. 9 (1982), the Court appeared to leave open the possibility that at least some sex classifications may be deemed suspect.
144 Mills v. Habluetzel, 456 U.S. 91, 99 (1982) ; Parham v. Hughes, 441 U.S. 347 (1979) ; Lalli v. Lalli, 439 U.S. 259 (1978) ; Trimble v. Gordon, 430 U.S. 762 (1977) . In Mathews v. Lucas, 427 U.S. 495, 506 (1976) , it was said that “discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes.” Lucas sustained a statutory scheme virtually identical to the one struck down in Califano v. Goldfarb, 430 U.S. 199 (1977) , except that the latter involved sex while the former involved illegitimacy.
145 Applying strict scrutiny, see, e.g., Sugarman v. Dougall, 413 U.S. 634 (1973) ; Nyquist v. Mauclet, 432 U.S. 1 (1977) . Applying lenient scrutiny in cases involving restrictions on alien entry into the political community, see Foley v. Connelie, 435 U.S. 291 (1978) ; Ambach v. Norwick, 441 U.S. 68 (1979) ; Cabell v. Chavez–Salido, 454 U.S. 432 (1982) . See also Plyler v. Doe, 457 U.S. 202 (1982) .
146 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (upholding mandatory retirement at age 50 for state police); Vance v. Bradley, 440 U.S. 93 (1979) (mandatory retirement at age 60 for foreign service officers); Gregory v. Ashcroft, 111 Ct. 2395 (1991) (mandatory retirement at age 70 for state judges). See also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442 (1985) (holding that a lower court “erred in holding mental retardation a quasi–suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation”).
147 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ; See discussion supra pp. 1805–09.
148 Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969) ; Shapiro v. Thompson, 394 U.S. 618, 638 (1969) .
149 Id. at 660 (Justice Harlan dissenting).
150 316 U.S. 535, 541 (1942) .
151 Reynolds v. Sims, 377 U.S. 533, 562 (1964) .
152 Carrington v. Rash, 380 U.S. 89 (1965) ; Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) ; Williams v. Rhodes, 393 U.S. 23 (1968) .
153 394 U.S. 618, 627, 634, 638 (1969) .
154 Kramer v. Union Free School Dist., 395 U.S. 621 (1969) ; Cipriano v. City of Houma, 395 U.S. 701 (1969) ; City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) ; Dunn v. Blumstein, 405 U.S. 330 (1972) .
155 This indefiniteness has been a recurring theme in dissents. E.g., Shapiro v. Thompson, 394 U.S. 618, 655 (1969) (Justice Harlan); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 177 (1972) (Justice Rehnquist).
156 E.g., Dunn v. Blumstein, 405 U.S. 330 (1972) .
157 E.g., Shapiro v. Thompson, 394 U.S. 618 (1969) .
158 E.g., Tate v. Short, 401 U.S. 395 (1971) .
159 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) .
160 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973) .
161 Id. at 30, 33–34. But see id. at 62 (Justice Brennan dissenting), 70, 110–17 (Justices Marshall and Douglas dissenting).
162 Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Justice Brennan concurring), 78–80 (Justice O’Connor concurring) (travel).
163 Zablocki v. Redhail, 434 U.S. 374 (1978) .
164 Maher v. Roe, 432 U.S. 464 (1977) ; Harris v. McRae, 448 U.S. 297 (1980) .
165 E.g., Jiminez v. Weinberger, 417 U.S. 628 (1974) (illegitimacy); Nyquist v. Mauclet, 432 U.S. 1 (1977) (alienage); Califano v. Goldfarb, 430 U.S. 199 (1977) (sex).
166 457 U.S. 202 (1982) .
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