Equal Protection
The Fourteenth Amendment’s Equal Protection Clause prohibits states from denying any person the equal protection of the laws; the Fifth Amendment’s Due Process Clause imposes the same constraint on the federal government (Bolling v. Sharpe).
Elements / Test
Three tiers of scrutiny:
| Tier | Trigger | Test | Burden |
|---|---|---|---|
| Rational basis | Default; economic/social legislation | Rationally related to legitimate government interest | Challenger bears burden; near-automatic deference |
| Intermediate scrutiny | Sex, legitimacy | Substantially related to important government interest | Government bears burden |
| Strict scrutiny | Race, national origin, alienage (suspect); fundamental rights | Necessary/narrowly tailored to compelling interest | Government bears burden; near-automatic invalidation |
Discriminatory intent requirement: Facially neutral laws require proof of both discriminatory impact and discriminatory purpose (Washington v. Davis; Arlington Heights).
Exceptions and Edge Cases
- Affirmative action: Compelling interest (diversity in education) + narrow tailoring (Grutter); race-neutral alternatives must be considered (Fisher); racial balancing is not compelling; recent SFFA v. Harvard (2023) eliminated race-conscious admissions
- Sex discrimination: Intermediate scrutiny (Craig v. Boren); gender stereotyping (United States v. Virginia)
- Alienage: Strict scrutiny generally; “political function” exception for jobs closely tied to self-governance (Foley v. Connelie)
- Rational basis with bite: Sexual orientation (Romer v. Evans; animus cannot be a legitimate interest); disability (City of Cleburne)
- Same-sex marriage: Fundamental right under both Equal Protection and Due Process (Obergefell v. Hodges)
- Voting: One person, one vote; race-based gerrymandering invalid; partisan gerrymandering is a political question
Policy Rationale
Anti-caste principle: prevents government from entrenching disadvantage based on characteristics irrelevant to merit. Tiered scrutiny attempts to calibrate judicial deference — most deferential for ordinary policy, least deferential when history of prejudice + political powerlessness (Carolene Products footnote 4).
Key Cases
| Case | Rule |
|---|---|
| Brown v. Board of Education (1954) | Racially segregated schools violate Equal Protection |
| Loving v. Virginia (1967) | Anti-miscegenation laws invalid under strict scrutiny |
| Craig v. Boren (1976) | Established intermediate scrutiny for sex classifications |
| Washington v. Davis (1976) | Facially neutral laws require proof of discriminatory purpose |
| Grutter v. Bollinger (2003) | Diversity is compelling interest; narrow tailoring required for affirmative action |
| Obergefell v. Hodges (2015) | Same-sex couples have fundamental right to marry |