Episode 171: December 14, 2012
by Adam Freedman
Today’s Topic: Constitution 101 – Equal Protection
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
This is the eleventh installment of a new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my earlier episodes on the Legal Lad Constitution page at quickanddirtytips.com, as well as my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.
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The Equal Protection Clause
The Equal Protection Clause is part of the 14th Amendment, which is one of three post-Civil War amendments ratified in 1868. Together, the 13th, 14th, and 15th Amendments were designed to require equal rights for former slaves. In an earlier episode of this Constitution series, I discussed the Due Process clause of the 14th Amendment, which prohibits states from denying “life, liberty, or property” without due process. The Equal Protection Clause says that no state may “deny to any person within its jurisdiction the equal protection of the laws.”
On its face, the clause requires that all persons be treated equally under the law. In reality, however, many, many laws require that different categories of people receive different treatment. Think about it: various laws say things like people under 16 can’t drive a car; or people under 21 can’t drink alcohol; or that women can’t serve in combat units in the military. Don’t those violate “equal protection?” The key is that courts will generally uphold such laws as long as they have a rational basis. Some laws, however, are held to a higher standard—known as “strict scrutiny”—if they are found to target a “suspect class,” that is, a group that has suffered a history of unequal treatment.
In 2010, federal judge Vaughn Walker held that a California law (known as Proposition 8) defining marriage as the union of one man and one woman violates the Equal Protection Clause. Walker held that Prop 8 should be treated to “strict scrutiny” because gays constitute a “suspect class.” No federal court had previously held that gays and lesbians constitute a “suspect class” under the Equal Protection Clause. More recently, a 2012 ruling of the Second Circuit Court of Appeals invalidated section 3 of the federal Defense of Marriage Act which defines marriage for purposes of federal law as the union of one man and one woman. Similar to Walker’s ruling, the Court held that gays are a quasi-suspect class, in part because, as a group, they lack political power. The Supreme Court has agreed to review this ruling during its 2013 term.
Equal Protection v. Segregation
Probably the most famous Equal Protection case is Brown v. Board of Education. In Brown, the Supreme Court considered laws in four states that either mandated racial segregation of public schools or allowed local authorities to mandate such segregation. The Court’s earlier decision in Plessy v. Ferguson held that states could maintain segregated facilities as long as they were “separate but equal.” In its 1954 decision in Brown, the Court overturned Plessy and held that that "separate educational facilities are inherently unequal."
But if public schools cannot discriminate against African-Americans, can they discriminate in favor of African-Americans? That is the question that courts have grappled with in various cases challenging affirmative action programs by which universities extend preferences to African-Americans and, sometimes other underrepresented minorities. Because affirmative action programs draw distinctions based on race, they are subject to strict scrutiny and the government must provide a “compelling interest” to justify such distinctions. In the 2003, the Supreme Court held that state universities have a compelling interest in achieving a diverse student body. The Court held that schools could not use a quota system to guarantee a certain number of minority students, but they could use race as a “plus factor” when considering student applications. In October 2012, the Court heard oral argument in Fisher v. University of Texas, a case involving racial preferences at Texas’s flagship university. A decision is expected in the spring of 2013 and you can be sure that Legal Lad will be there to explain the meaning and effects of this decision as soon as it happens.
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