The New Standards: Active Review.

When government leg-islates 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,1472 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 cases1473 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 because no “overriding statutory purpose”1474 was shown and they were not necessary to some “legitimate overriding purpose.”1475 “A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.”1476 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.1477 A measure that does not draw a distinction explicitly on race but that 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.1478

Toward the end of the Warren Court, there emerged a trend to treat classifications on the basis of nationality or alienage as suspect,1479 to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review,1480 and to pass on statutory and administrative treatments of illegitimates inconsistently.1481 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.1482

However, in a major evaluation of equal protection analysis early in this period, the Court reaffirmed a two-tier approach, determining that where the interests involved that did not occasion strict scrutiny, the Court would decide the case on minimum rationality standards. Justice Powell, writing for the Court in San Antonio School Dist. v. Rodriguez,1483 decisively rejected 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,1484 a holding that has several times been strongly reaffirmed by the Court.1485 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.”1486 And classifications that disadvantage illegitimates are subject to a similar though less exacting scrutiny of purpose and fit.1487 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.1488

The Court has so far resisted further expansion of classifications that must be justified by a standard more stringent than rational basis. For example, the Court has held that age classifications are neither suspect nor entitled to intermediate scrutiny.1489 Although the Court resists the creation of new suspect or “quasi-suspect” classifications, it may still, on occasion, apply the Royster Guano rather than the Lindsley standard of rationality.1490

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.1491

It is thought1492 that the “fundamental right” theory had its origins in Skinner v. Oklahoma ex rel. Williamson,1493 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.”1494 A stiffening of the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility1495 and the phrase “compelling state interest” was used several times in Justice Brennan’s opinion in Shapiro v. Thompson.1496 Thereafter, the phrase was used in several voting cases in which restrictions were voided, and the doctrine was asserted in other cases.1497

Although no opinion of the Court attempted to delineate the process by which certain “fundamental” rights were differentiated from others,1498 it was evident from the cases that the right to vote,1499 the right of interstate travel,1500 the right to be free of wealth distinctions in the criminal process,1501 and the right of procreation1502 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. In Rodriguez,1503 the Court also sought to rationalize and restrict this branch of active review, as that case involved both a claim that de facto wealth classifications should be suspect and a claim that education was a fundamental interest, so that providing less of it to people because they were poor triggered a 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 regarded 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.”1504 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 did not ultimately prevent the Court’s adoption of a “three-tier” or “sliding-tier” standard of review, Justice Powell’s admonition that only interests expressly or impliedly protected by the Constitution should be considered “fundamental” did not prevent the expansion of the list of such interests. The difficulty was that Court decisions on the right to vote, the right to travel, the right to procreate, as well as other rights, 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.1505 Thus, state limitation on the entry into marriage was soon denominated an incursion on a fundamental right that required a compelling justification.1506 Although denials of public funding of abortions were held to implicate no fundamental interest—abortion’s being a fundamental interest—and no suspect classification—because only poor women needed public funding1507 —other denials of public assistance because of illegitimacy, alienage, or sex have been deemed to be governed by the same standard of review as affirmative harms imposed on those grounds.1508 And, in Plyler v. Doe,1509 the complete denial of education to the children of illegal aliens was found subject to intermediate scrutiny and invalidated.

An open question after Obergefell v. Hodges, the 2015 case finding the right to same-sex marriage is protected by the Constitution, is the extent to which the Court is reconceptualizing equal protection analysis.1510 In Obergefell, the Court concluded that state laws that distinguished between marriages between same- and opposite-sex married couples violated the Equal Protection Clause.1511 However, in lieu of more traditional equal protection analysis, the Obergefell Court did not identify whether the base classification made by the challenged state marriage laws was “suspect.” Nor did the Obergefell Court engage in a balancing test to determine whether the purpose of the state classification was tailored to or fit the contours of the classification. Instead, the Court merely declared that state laws prohibiting same-sex marriage “abridge[d] central precepts of equality.”1512 It remains to be seen whether Obergefell signals a new direction for the Court’s equal protection jurisprudence or is merely an anomaly that indicates the fluctuating nature of active review, as the doctrine has been subject to shifting majorities and varying degrees of concern about judicial activism and judicial restraint. Nonetheless, as will be more fully reviewed below, the sliding scale of review underlies many of the Court’s most recent equal protection cases, even if the jurisprudence and its doctrinal basis have not been fully elucidated or consistently endorsed by the Court.

Footnotes

1472
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. [Back to text]
1473
Brown v. Board of Education, 347 U.S. 483 (1954). [Back to text]
1474
McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964). [Back to text]
1475
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. [Back to text]
1476
Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979), quoted in Washington v. Seattle School Dist., 458 U.S. 457, 485 (1982). [Back to text]
1477
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). [Back to text]
1478
Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School Dist., 458 U.S. 457 (1982). [Back to text]
1479
Graham v. Richardson, 403 U.S. 365, 371–72 (1971). [Back to text]
1480
Reed v. Reed, 404 U.S. 71 (1971); for the hint, see Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972). [Back to text]
1481
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). [Back to text]
1482
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). [Back to text]
1483
San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). [Back to text]
1484
411 U.S. 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. [Back to text]
1485
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). [Back to text]
1486
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. [Back to text]
1487
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. [Back to text]
1488
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). [Back to text]
1489
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, 501 U.S. 452 (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”). [Back to text]
1490
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); see discussion, supra. [Back to text]
1491
Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 638 (1969). [Back to text]
1492
Shapiro v. Thompson, 394 U.S. at 660 (Justice Harlan dissenting). [Back to text]
1493
316 U.S. 535, 541 (1942). [Back to text]
1494
Reynolds v. Sims, 377 U.S. 533, 562 (1964). [Back to text]
1495
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). [Back to text]
1496
394 U.S. 618, 627, 634, 638 (1969). [Back to text]
1497
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). [Back to text]
1498
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). [Back to text]
1499
E.g., Dunn v. Blumstein, 405 U.S. 330 (1972). [Back to text]
1500
E.g., Shapiro v. Thompson, 394 U.S. 618 (1969). [Back to text]
1501
E.g., Tate v. Short, 401 U.S. 395 (1971). [Back to text]
1502
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). [Back to text]
1503
San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973). [Back to text]
1504
411 U.S. at 30, 33–34. But see id. at 62 (Justice Brennan dissenting), 70, 110–17 (Justices Marshall and Douglas dissenting). [Back to text]
1505
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). [Back to text]
1506
Zablocki v. Redhail, 434 U.S. 374 (1978). [Back to text]
1507
Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). [Back to text]
1508
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). [Back to text]
1509
457 U.S. 202 (1982). [Back to text]
1510
See 576 U.S. ___, No. 14–556, slip op. at 2, 28 (2015). [Back to text]
1511
Id. at 22. [Back to text]
1512
Id. [Back to text]