EQUAL PROTECTION OF LAW: CLASSIFICATIONS AND CIVIL RIGHTS

The idea of equal protection is the idea of legislated equality. There are also notions of fairness, goodness, fraternity, justice, and social justice in the concept. There is no conception of liberty because equal protection is about the creation of civil rights, not liberties. A rather sharp distinction is made between CIVIL RIGHTS and CIVIL LIBERTIES, as below:

CIVIL RIGHTS - based on Constitutional right to Equality claims (equal before law, before state, in possession of rights, freedom from unjustifiable discrimination, to be treated the same)

CIVIL LIBERTIES - based on Constitutional right to Liberty claims (economic rights, to dispose of property in any way seen fit, freedom to select and choose, to act nearly anyway whatsoever)

• Civil Rights are owned on account of being a citizen of a country
• Civil Liberties are rights that go beyond freedom from government constraint
• Human Rights are freedoms protected by international community

The Equal Protection clause is located in Amendment XIV: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The history of equal protection has deep roots that go beyond the immediate context of the anti-slavery amendments (Amendments XIII, XIV, and XV which ended slavery, prohibited discrimination, and restored voting rights, respectively). The idea of treating everyone alike is part of humanity's collective fear of the unknown and unexpected. For example, when disasters happen (floods, earthquakes, etc.), they affect rich man and poor man alike. While there's a leveling quality to such events, and a corresponding sense of empathy and goodness that pours from hearts and wallets, you can't run a nation on empathy alone. There's a political need to restore a social stratification system necessary for the continued progress of society. This need is considered part of what's called realpolitik.

In other words, equal protection is NOT about leveling the playing field by turning everyone into cloned look-alikes who address each other as "comrade" (that's called Communism). It's about maintaining a decent social stratification system which allows as many people as possible to achieve their fullest potential. That's where the concept of classification comes in. All stratification systems are hierarchical. Some people have more natural talent than others; others have more wealth; and just about any group of people left to their own devices will create some sort of pecking order based on social distinctions. It's the purpose of Equal Protection of Law to make sure the worst forms of social distinctions do not arise. Some distinctions are constitutional; others are not. 

Equal protection is related to the notion of pluralism, an aesthetic theory of goodness which some people talk about in terms of diversity or inclusion. It is designed to work for open societies that have high levels of immigration and a certain amount of xenophobia. It's expressed in the motto of the United States -- E Pluribus Unum -- one from many. It's expressed in the Declaration of Independence as "all men are created equal." It's expressed in Aristotle's principle of justice:

 Equality consists in the same treatment of similar persons.
Equality is not, however, for all, but only for equals,
and inequality is ... only for unequals (Aristotle)

At the time the Constitution was being written, the founding fathers were influenced by Adam Smith (1723-90) who wrote the book Wealth of Nations. Smith's ideas are generally considered the basis of capitalism, and in many ways, Smith was the architect of laissez-faire economics which dominated much of early American history. This particular economics tended to legitimize the worst forms of socio-economic stratification by putting everyone on the equal plane of competition without consideration for pre-existing wealth and status (e.g. counting slaves as three-fifths of a person). There are still many adherents to Smith's attractive notion of free enterprise, but there are just as many proponents of the idea of social justice, a theory that emphasizes the importance of economic fraternity and fairness in the form of adequate standards of living. Social justice is related to equal protection through the ideas that past vestiges, legacies, or patterns of inequality stand in the way of real progress. In Constitutional law, this is referred to as invidious discrimination; some call it institutional de facto discrimination, or the legacy of slavery.

Let's examine the legal aspects of classification. All constitutional republics, the UN Declaration of Human Rights bucking the trend, legitimize some form of legal and nonlegal forms of discrimination. The usual method is for a legislature or Parliament to pass laws and for a judiciary to provide interpretation. The government must think through the following:

• the law has to recognize that differences exist among people
• all laws tend to affect different groups differently
• the right to legislate implies a right to classify which groups are affected more or less
• once properly classified, groups may be treated differently between themselves, but
• within themselves, each member of a classified group must be treated alike

These last two statements are the principle of equal protection. In actuality, it's a principle of equal discrimination. It allows groups to be discriminated against as long as, with respect to the group receiving less, the discrimination is spread equally among all members of the affected group. For example, if a law makes a distinction among a group of people called XY, then not only does the dividing line, or classification, between X/Y have to be constitutionally valid, but the equal protection clause requires that all members of group X receive similar treatment and all members of group Y receive similar treatment.

The role of the legislature is to consider which particular classifications are good or bad, taking into consideration a nation's historic background, culture, and changing attitudes. The role of the judiciary is to review these classifications to make sure they are not arbitrary and capricious, but more importantly to consider whether equal protection (equal discrimination) is taking place both between and within groups.

To assist the judiciary, the Supreme Court has developed three basic tests of the Equal Protection clause. Which test is used depends on the type of discrimination and the government interests at stake. These tests are also known as LEVELS OF SCRUTINY and by other names:

The most basic test is the rational basis test, also called minimal scrutiny, and sometimes the reasonableness test. It generally looks at whether unequal treatment is arbitrary or capricious. It often comes up with health and safety regulations, such as when the government passes a law making it illegal for persons under age 18 to do something. The burden of proof is on the challenging party to show that such a law is irrational. 

The second test is the compelling interest test, also called strict scrutiny, and sometimes called the suspect class test. A suspect class is a group of people the Court has already determined that distinctions or discriminations against them is irrational. Think of them as "protected" groups. Race and racial discrimination issues are predominantly the cases that come up for this kind of review. The burden of proof is on the government to show that it has a compelling interest to make law in this area, and that they have gone about it by the least restrictive means possible.

The third test is the substantial interest test, also called intermediate scrutiny, and sometimes called the heightened scrutiny test. In many ways, it's a mix of the other two tests, and issues that come up here are supposed to be cases dealing with groups that have been historically disadvantaged or are politically powerless. Gender and sex discrimination cases tend to reviewed under this standard. The burden of proof is on the government to show a greater than ordinary justification for passing laws in this area.

Over the years, Congress has also passed various Civil Rights Acts which extend the Constitutional guarantee of equal protection. These give the executive branch of government various enforcement powers. For litigants, it's easier to prevail in Court by proving violation of a civil rights statute than a constitutional violation. The most important pieces of legislation are:

• Civil Rights Acts of 1866, 1870, 1871, and 1875 -- These made it a federal crime to deny public accommodations to blacks, and also outlawed race-motivated conspiracy.
• Civil Rights Act of 1957 -- This established the Civil Rights Division in the Justice Dept., a bipartisan Civil Rights Commission, and enhanced injunction powers for any deprivation of voting rights.
• Civil Rights Act of 1960 -- This allows federal troops to be used to enforce school desegregation, and also authorizes court-appointed "referees" to help blacks overcome a pattern or practice of not voting.
• Civil Rights Act of 1964 -- This is the broadest piece of legislation, forbidding discrimination based on race, color, religion, national origin, and in the case of employment, sex. It established Community Relations Boards, the Equal Opportunity Commission, and expanded the powers of the Civil Rights Commission. It also outlawed discrimination in voter registration, public accommodations, schools, and other public facilities. It provides for withholding of federal funds as a sanction.
• Civil Rights Act of 1968 -- This prohibited discrimination in advertising, banking and real estate based on sex, race, and disability.
• Voting Rights Act of 1982 -- This required bilingual ballots to be provided during elections.
• Civil Rights Act of 1991 -- Essentially a conservative backlash piece of legislation, this made it harder for employees to prove employment discrimination by limiting claims to de facto forms of discrimination.

Affirmative action programs have their origin in Presidential Order #11246 when President Johnson in 1965 instructed the Labor Dept. to require firms doing business with the federal government to ensure they were nondiscriminatory. Firms, on their own, started to aggressively recruit and retain minority employees. The Supreme Court didn't review any related case until 1978 when it heard the "reverse discrimination" claim in Regents of University of California v. Bakke. The final vote was 5-4 in favor of affirmative action programs, as long as they don't set quotas. 

In 1980, the Court started considering the practice called minority set-asides. These are systems that give special consideration to minority-owned firms in the awarding of contracts and subcontracts. In a series of rulings, the Court narrowly held that such programs, as narrowly construed, are unconstitutional, and signaled that affirmative action programs, in the future, will be held to very exacting standards. At present, any affirmative action program, to be constitutional, must meet the following standards:

In summary, it's unlikely that the Equal Protection clause alone will ever eliminate all unfair inequalities. It's just not designed to do this. Courts are reluctant to get into areas involving voluntary associations, like religious organizations and other groups. With certain economic opportunities, the Commerce Clause is much more effective than the Equal Protection clause, at least with public accommodations like restaurants and motels. More likely, the Equal Protection clause will eliminate the harshest inequalities, increase the overall standard of living, and bring enjoyment of the good life to as many people as possible.

INTERNET RESOURCES:
American Civil Liberties Union
Amnesty International
Citizen Action to Remove Hunger and Poverty
Civil Rights at MegaLaw.com
Equal Protection Under the Law: An Internet Webquest
How to Sue for a Civil Rights Violation
The Legal Basis of the Claim for Slavery Reparations
Photo Tour of the Civil Rights Movement
UN Declaration of Human Rights Website
US Dept. of Justice Civil Rights Division

PRINTED RESOURCES:
Davis, A. & B. Graham (1995) The Supreme Court, Race, and Civil Rights. Thousand Oaks, CA: Sage.
Ducat, C. (2000) Constitutional Interpretation (7e). Belmont, CA: Wadsworth.
Editors (1974) Dictionary of the History of Ideas. NY: Charles Scribner's Sons.
Editors (1984) The Guide to American Law. St. Paul: West Publishing Co.
Epstein, L. and T. Walker (2001) Constitutional Law for a Changing America (4e). Washington D.C.: CQ Press.
Glazer, N. (1975) Affirmative Discrimination. NY: Basic Books.
Peterson, P. (1996) Classifying by Race. Princeton: Princeton Univ. Press.
Smith, C. (1991) The Courts and the Poor. Chicago: Nelson-Hall.
Urofsky, M. (1997) Affirmative Action on Trial: Sex Discrimination. Lawrence: Univ. Press of Kansas.

Last updated: 06/25/03
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