Basic Equal Protection Analysis

Santa Clara Law Review

Volume 29 | Number 1 Article 4

1-1-1989

Basic Equal Protection AnalysisRussell W. Galloway Jr.

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Recommended CitationRussell W. Galloway Jr., Basic Equal Protection Analysis, 29 Santa Clara L. Rev. 121 (1989).Available at: http://digitalcommons.law.scu.edu/lawreview/vol29/iss1/4

BASIC EQUAL PROTECTION ANALYSIS

Russell W. Galloway, Jr.*

INTRODUCTION

The equal protection clause1 has been called "the single mostimportant concept in the Constitution for the protection of individualrights." 2 It protects racial minorities, women, resident aliens, and il-legitimate children from discriminatory treatment. It places strictlimits on the government's ability to infringe fundamental constitu-tional rights of all classes pf persons. And it requires that all govern-ment classifications be rationally related to legitimate purposes.

But how does the equal protection clause work? This articledescribes the basic structure of equal protection analysis. Its purposeis to help law students, lawyers, and judges understand and applythe diverse strands of Supreme Court law in this complex and con-troversial field.

The legal analysis developed by the Supreme Court in its effortto enforce the equal protection clause is summarized in the followingoutline:

Equal Protection: Basic Analysis

I. Preliminary questionsA. Does the court have jurisdiction?B. Is the claim justiciable?C. Was the harm caused by government action?

II. On the merits: Did the government action violate the equalprotection clause?A. Applicability: Did the government use a classification?

1. Facial or2. In effect

1989 by Russell W. Galloway, Jr.* Professor of Law, Santa Clara University School of Law; J.D., 1965, Columbia Uni-

versity School of Law; Ph.D., 1970, Graduate Theological Union; Director, Supreme CourtHistory Project; member of the California Bar.

1. U.S. CONST. amend. XIV, 1. The clause provides, "[Nior [shall any State] deny toany person within its jurisdiction the equal protection of the laws."

2. J. NOWAK, R. ROTUNDA, & J. YOUNG, CONSTITUTIONAL LAW 524 (3d ed. 1986).

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B. Compliance: Does a sufficient justification exist to supportthe classification?1. Classifications subject to intensified scrutiny (presump-

tion of unconstitutionality)a. Suspect classifications

1) Is the classification suspect or semi-suspect, i.e.,based on race, national origin, ethnicity, residentalienage, gender, or illegitimacy?a) Facial orb) Effect and purpose

2) Is the applicable level of intensified (strict,intermediate) scrutiny satisfied?a) Sufficiently strong (compelling, important) in-

terest?b) Substantially effective means?c) Necessary means (least onerous alternative)?

b. Fundamental rights1) Did the government infringe a fundamental right

of the class?a) Fundamental right?b) Infringement?

2) Is strict scrutiny satisfied?a) Does the government classification further a

compelling interest?1) Compelling interest?2) Substantially effective means?

b) Is the use of the classification necessary?c. Other grounds for intensified scrutiny

1) Is there any other basis for intensified scrutiny,e.g., somewhat suspect class and somewhat fun-damental right?

2) Is the use of the classification substantiallyrelated to a substantial government interest?a) Substantial interest?b) Means substantially related to end?

1) Substantially effective means?2) Narrowly tailored means?

2. Classifications subject to rationality review (presump-tion of constitutionality)a. Valid government interest?b. Rational means?

III. Remedies

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EQUAL PROTECTIONLet us translate this outline into prose. A claimant seeking re-

dress for an alleged violation of the equal protection clause must ini-tially meet three preliminary requirements.3 First, the court musthave jurisdiction over the claim. Second, the claim must be justicia-ble. And third, the conduct giving rise to the claim must be govern-ment action. Failure to satisfy any of these requirements normallyresults in dismissal without reaching the merits of the equal protec-tion claim.

If the claimant satisfies the preliminary requirements, the courtwill proceed to the merits of the claim. On the merits, the analysishas two components.4 First, one must determine whether the equalprotection clause is applicable. The equal protection clause appliesonly to government classifications (i.e., government action imposing aburden or conferring a benefit on one class of persons to the exclu-sion of others).5 Government classifications may be "facial" 6 or "ineffect." If the classification appears on the face of a statute, courtdecision, or other government action, the equal protection clause ap-plies. Similarly, if the government action is neutral on its face buthas the effect of distributing burdens or benefits unequally, equalprotection requirements must be satisfied. If no government classifi-cation is present, the equal protection clause is not applicable, andthe analysis ends.

If, on the other hand, the government has used a classification,the equal protection clause is applicable, and one must determinewhether the government complied with the requirements of theclause. Here the analysis is more complex. In general, the equal pro-tection clause requires that government classifications be supportedby a sufficient justification. Courts rely on a set of tests collectivelylabelled "means-end scrutiny" to measure the sufficiency of the justi-fication. Some classifications are subject to intensified means-end

3. These are standard preliminary requirements that apply throughout constitutionallaw.

4. The two-part structure of the analysis is the same for all constitutional limits. Inapplying any constitutional restriction on government action, one should ask first, whether thelimit is applicable-i.e., is this the kind of government action that is subject to this limit?-andsecond, whether the government complied with the Supreme Court's rules for enforcing thelimit. In short, the analysis on the merits of any constitutional limit focuses on two issues: (1)applicability and (2) compliance. See Galloway, Basic Constitutional Analysis, 28 SANTACLARA L. REV. 775 (1988).

5. E.g., San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 59 (1973) (Stewart,J., concurring) ("The function of the Equal Protection Clause, rather, is simply to measurethe validity of classifications created by state laws.").

6. See infra notes 28-29 and accompanying text.7. See infra notes 30-31 and accompanying text.

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scrutiny, an activist form of judicial review demanding substantialjustification; others are subject to rationality review, a more deferen-tial form of means-end scrutiny requiring only a rationaljustification.8

Thus, in determining whether a government classification issupported by sufficient justification to satisfy the equal protectionclause, one must determine first what kind of means-end scrutiny isapplicable and second whether that test is met. Intensified scrutiny isapplicable where the classification is suspect (or semi-suspect), or thegovernment has infringed a fundamental right, or the classification issomewhat suspect and the interest is somewhat fundamental. Other-wise rationality review applies.9

If the classification is suspect or semi-suspect, intensified scru-tiny is applicable, and the government must overcome a presumptionof unconstitutionality by showing that its justification is sufficient tosatisfy the appropriate level of intensified scrutiny. The Court cur-rently recognizes four kinds of classifications as suspect or semi-sus-pect: (1) classifications based on race, ethnicity, or national origin;(2) state classifications based on resident alienage; (3) classificationsbased on gender; and (4) classifications based on illegitimacy.10

The test for determining whether one of these suspect or semi-suspect classifications is present is somewhat different from the testfor determining whether any government classification is present. Ifa facially suspect or semi-suspect classification is present, intensifiedscrutiny applies. On the other hand, if the government action classi-fies only by virtue of an adverse impact on one of these groups, ihe

8. See Galloway, Means-End Scrutiny in American Constitutional Law, 21 Loy.L.A.L. REV. 449 (1988). Means-end scrutiny is an analytical process used to evaluate thegovernment's justification for conduct that harms individuals. In applying means-end scrutiny,courts examine the purposes (ends) which government conduct is designed to serve and themethods (means) chosen to further those purposes. Such scrutiny may focus on three differenttopics: (1) the importance of the government's interests; (2) the effectiveness of the govern-ment's means; and (3) the availability of less onerous alternatives. The least stringent forms ofmeans-end scrutiny require only that the government's conduct be a rational means to furthersome valid interest. The more intensified forms require that the government's conduct be asubstantially effective and necessary means to further some significant, important, or compel-ling interest.

9. We must decide, first, whether the . . . [government classification] operates tothe disadvantage of some suspect class or impinges upon a fundamental rightexplicitly or implicitly protected by the Constitution, thereby requiring strictjudicial scrutiny. . . . If not, the . . . [classification] must still be examined todetermine whether it rationally furthers some legitimate, articulated state pur-pose . . ..

Rodriguez, 411 U.S. at 17.10. See infra notes 42-122 and accompanying text.

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EQUAL PROTECTION

action is not a suspect or semi-suspect classification unless it wasundertaken for the purpose of harming members of the protectedclass." Government action having an adverse impact on a protectedclass but no evil purpose is subject only to rationality review.

Classifications based on race, ethnicity, and national origin aresuspect. 2 Such classifications violate the equal protection clause un-less the government can satisfy "strict scrutiny" by showing that theclassification is "necessary to further a compelling interest."'

State government classifications disfavoring resident aliens aresuspect and violate the equal protection clause unless the governmentcan satisfy the same strict scrutiny test applicable to racial classifica-tions."' However, when States exclude resident aliens from govern-ment jobs that go to the heart of the democratic process, strict scru-tiny is not applicable, and the classification is subject only torationality review.' 5

Gender- and illegitimacy-based classifications are semi-suspectand violate the equal protection clause unless the government cansatisfy intermediate scrutiny by showing that the classification is"substantially related to an important interest."' 6

Intensified scrutiny also applies if the government action in-fringes a fundamental right of the members of a class. To determinewhether this fundamental rights strand of equal protection law isapplicable, one must determine, first, whether the challenged govern-ment action affects any fundamental constitutional right.' 7 If thegovernment action affects such a fundamental right, one must deter-mine whether the government action substantially infringes thatright. If so, strict scrutiny applies, and the classification violates theequal protection clause unless the government shows that its conductis necessary to further a compelling interest."8

Occasionally, the Supreme Court uses a mildly intensified formof means-end scrutiny in cases not involving either a suspect or semi-

11. E.g., Personnel Administrator v. Feeney, 442 U.S. 256 (1979).12. See infra notes 46-75 and accompanying text.13. See infra notes 50-56 and accompanying text.14. The federal government has broad power over resident aliens and may impose re-

strictions on them without being subject to strict scrutiny. E.g., Mathews v. Diaz, 426 U.S. 67(1976).

15. See infra notes 80-86.16. See infra notes 94-120 and accompanying text.17. Fundamental rights include those rights expressly protected by specific constitutional

provisions (such as free speech) and other rights recognized as fundamental by the SupremeCourt (such as the right to have one's vote counted equally and the right to migrate from onestate to another).

18. See infra notes 123-33 and accompanying text.

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suspect classification or an infringement of a fundamental right. Thisoccurs, apparently, when the government (1) uses a classificationthat is not technically suspect or semi-suspect but shares some of thecharacteristics of those classes and (2) infringes an interest which isimportant even though not technically fundamental. In such cases,the government must show that its classification is substantially re-lated to a substantial government purpose.19

If intensified scrutiny does not apply, the classification is subjectto rationality review, a relatively mild kind of means-end scrutinyrequiring only that the classification be a rational means for further-ing a valid government purpose. Occasionally, the Court uses anondeferential rational relation test, which requires that the classifi-caticn be a demonstrably effective means for furthering some actualvalid government interest. Usually, however, the Court uses thedeferential rational basis test, which requires only that the classifica-tion arguably be a rational means for furthering some conceivablegovernment interest."1 When rationality review applies, the claimantnormally has the burden of proving that the government's classifica-tion is not a rational means for furthering any valid governmentinterest.

If the equal protection clause is inapplicable or the applicablelevel of means-end scrutiny is satisfied, the analysis ends. If, how-ever, the equal protection clause is applicable and its requirementsare not met, one must proceed to questions about remedies. Here thequestions concern what kinds of damages are recoverable and whatkinds of injunctions may be issued to prevent further violations of theclause.

The next section discusses each step of basic equal protectionanalysis in more detail.

DISCUSSION

I. PRELIMINARY QUESTIONS

Before reaching the merits, equal protection claimants must sat-isfy the three standard preliminary requirements that apply through-out constitutional law (i.e., they must show that the governmentharmed them enough to create a justiciable claim that is within thejurisdiction of the court).

19. See infra notes 191-96 and accompanying text.20. See infra notes 203-09 and accompanying text.21. See infra notes 199-202 and accompanying text.

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A. Does the Court Have Jurisdiction?First, the claimant must show that the court has jurisdiction

over the claim. This requirement sometimes raises issues in theequal protection context, as when Congress tries to repeal the Su-preme Court's jurisdiction over busing cases. This article will as-sume that jurisdiction is present.B. Is the Claim Justiciable?

Second, to qualify for a decision on the merits, the claim mustinvolve a justiciable controversy between adverse parties. Jus-ticiability problems surface repeatedly in equal protection cases.Standing barriers, for example, have resulted in dismissal of equalprotection claims without reaching the merits.2" Similarly, mootnesshas resulted in dismissal of some famous cases.28 This article will notprovide a detailed analysis of justiciability issues.C. Was the Harm Caused By Government Action?

Third, the equal protection clause, like most other constitutionallimits, applies only to the government." ' Unequal distribution ofbenefits and burdens by private parties need not satisfy equal protec-tion requirements. If a government official imposes the challengedclassification, the government action requirement is met unless theclassification was completely unrelated to the official's governmentduties. If a private party imposes the classification, such as a privateowner refusing to sell a house to a minority purchaser, the govern-ment action requirement is not met unless the government eithercompelled the discrimination2" or encouraged it so substantially thatthe decision must be attributed to the government." A symbiotic re-lationship between the government and the private party, in which

22. E.g., Warth v. Seldin, 422 U.S. 490 (1975) (suit challenging discriminatory zoninglaw dismissed because plaintiffs lacked standing).

23. E.g., DeFunis v. Odegaard, 416 U.S. 312 (1974) (suit challenging law school's af-firmative action program dismissed as moot because claimant was about to graduate).

24. Indeed, many of the most famous government action cases have involved equal pro-tection claims. E.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (refusal to serve blackguest at bar in private club is not government action); Reitman v. Mulkey, 387 U.S. 369(1967) (private sales and rentals of real estate considered government action because en-couraged by state initiative); Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) (seg-regation of private restaurant in public parking facility is government action); Shelley v. Krae-mer, 334 U.S. 1 (1948) (judicial enforcement of restrictive covenant is government action).

25. E.g., Peterson v. City of Greenville, 373 U.S. 244 (1963) (segregation of privaterestaurant required by ordinance is government action).

26. E.g., Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Reitman, 387 U.S. 369 (1967).

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the government profits from the private discrimination, may also sat-isfy the government action requirement, 7 but the status of this ruleis in doubt.

If the claimant does not satisfy the three preliminary require-ments, the claim should be dismissed without reaching the merits ofthe equal protection issues. If the claimant satisfies the preliminaryrequirements, one may proceed to evaluate the equal protectionclaim on the merits.

II. ON THE MERITS: WAS THE EQUAL PROTECTION CLAUSEVIOLATED?

Analysis of equal protection claims on the merits involves thesame two-step inquiry that applies to all constitutional limits. Thethreshold question is whether the equal protection clause is applica-ble (i.e., whether the government action that harmed claimant wasthe kind of government action that is subject to the equal protectionclause). If so, the second step is to determine whether the govern-ment has complied with equal protection requirements.

A. Applicability: Did the Government Use a Classification?The equal protection clause applies only to government classifi-

cations. This occurs when government action imposes a burden orconfers a benefit on one class of persons to the exclusion of others.Government classifications may be "facial" or "in effect."

1. Facial Classification: Did the Government ConductClassify "On Its Face"?

Facial classifications are subject to the equal protection clause.For example, if the classification appears on the face of a statute(i.e., in the express words of the statute), it is subject to equal protec-tion scrutiny.28 Similarly, a court order based explicitly on racialgrounds involves a facial government classification.

29

27. See Burton, 365 U.S. 715 (1961).28. E.g., Brown v. Board of Educ., 347 U.S. 483 (1954) (statutes explicitly requiring

racial segregation in public schools); Strauder v. West Virginia, 100 U.S. 303 (1880) (statutelimiting jury service to "white male persons").

29. E.g., Palmore v. Sidoti, 466 U.S. 429 (1984) (child custody order explicitly based onrace of mother's spouse is suspect); cf Shelley v. Kraemer, 334 U.S. 1 (1948) (court orderenforcing restrictive covenant is government action).

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2. De Facto Classification: Did the Government ConductClassify "In Effect"?

Even if the government action is facially neutral, it is subject toequal protection scrutiny if it has the effect of distributing burdensand benefits unequally. 30 At this initial stage in the analysis, whenone is determining whether the equal protection clause is applicableor not, one need not consider whether the government intended toharm claimant's class."' It is enough that the government action pro-duced an unequal effect.

If the government action that harmed claimant is not a classifi-cation, the equal protection clause does not apply and the equal pro-tection analysis ends. If, on the other hand, the challenged govern-ment action is a classification, the analysis proceeds to the questionof compliance.

B. Compliance: Is the Government's Justification for Using theClassification Sufficient To Satisfy the Applicable Level of Means-End Scrutiny?

If claimant was harmed by a government classification, theequal protection clause is applicable, and the analysis reaches a cru-cial turning point. All government classifications are subject tomeans-end scrutiny, so it is clear that the classification must satisfysome version of means-end scrutiny. But different kinds of classifica-tions are subject to different levels of means-end scrutiny, varyingfrom strict scrutiny all the way down to rationality review. The law-yer's task, at this point in the analysis, is to examine the classifica-tion, characterize it, and then scan the various strands of equal pro-tection law to determine which test is controlling. 2

30. E.g., Shapiro v. Thompson, 394 U.S. 618 (1969) (durational residency requirementhas the effect of dividing applicants into two classes); Harper v. Virginia Bd. of Elecs., 383U.S. 663 (1966) (poll tax has the effect of dividing potential voters into two classes).

31. Later, when determining whether a nonfacial classification is suspect, effect is notenough. Instead, to trigger intensified scrutiny, claimant must show discriminatory effect andpurpose. See infra notes 38-41 and accompanying text.

32. Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 906 n.6 (1986) ("Thelogical first question to ask when presented with an equal protection claim, and the one weusually ask first, is what level of review is appropriate."); United States R.R. Retirement Bd.v. Fritz, 449 U.S. 166, 174 (1980) ("The initial issue . . . is the appropriate standard ofjudicial review .... "). This step of the analysis is akin to the characterization step in conflictof law analysis. There, the lawyer examines the facts, determines whether the claim is basedon tort, contract, or the like, and then applies the choice-of-law rules for the appropriate bodyof law. Similarly, in equal protection cases, the lawyer examines the facts, determines whatkind of classification is present, and then applies the legal test specified by the Supreme Court

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Is this a suspect classification? Does the classification infringe afundamental right? Or is this a run-of-the-mill classification subjectonly to rationality review? If any arguable bases for intensified scru-tiny are present, these theories should be analyzed in more detail. Ifno basis for intensified scrutiny is present, rationality review shouldbe applied.

The following sections describe the different kinds of govern-ment classifications recognized in Supreme Court cases and themeans-end scrutiny test applicable to each.

1. Is Intensified Scrutiny Applicable, and, If So, Is It Met?The cases in which the Court uses intensified scrutiny in ap-

praising the justification for government classifications fall into threecategories. First, if the classification is suspect or semi-suspect, inten-sified scrutiny applies." Second, if the classification results in theinfringement of a fundamental right of class members, intensifiedscrutiny applies."4 Third, even if the classification is not suspect anddoes not infringe any fundamental right, the Court may adopt inten-sified scrutiny if the classification is somewhat suspect and the inter-est is somewhat fundamental." If the classification falls into any ofthese three categories, the Court will set aside the usual presumptionof constitutionality and require the government to show that its con-duct has a strong justification.

a. Suspect Classification StrandIf the challenged classification is suspect or semi-suspect, inten-

sified scrutiny is applicable, and the classification violates the equalprotection clause unless it is supported by a sufficiently weighty jus-tification to satisfy the appropriate version of intensified scrutiny. Todate, the Court has recognized four kinds of classifications as suspector semi-suspect: (1) race, ethnicity, and national origin, (2) residentalienage, (3) gender, and (4) illegitimacy. 6 These four classificationswill be discussed separately in the following four sections.

First, however, one legal requirement applicable to all four cat-egories needs to be discussed. In each case, the threshold questionthat must be answered before applying intensified scrutiny is

for that particular kind of classification.33. See infra notes 36-122 and accompanying text.34. See infra notes 123-90 and accompanying text.35. See infra notes 191-96 and accompanying text.36. See infra notes 42-122 and accompanying text.

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whether the government action, in fact, involves a suspect or semi-suspect classification. Obviously, this question is closely related to thepreviously discussed question of whether the government action in-volves a classification that is subject to the equal protection clause."7But it is not identical, and the difference is critically important.

In order to be deemed a suspect or semi-suspect classification,the government action must classify on the basis of race, alienage,gender or illegitimacy on its face or in effect and purpose. To deter-mine whether a facially suspect classification exists, one looks at thelanguage used by the government to see whether an explicit classifi-cation based on race, alienage, gender or illegitimacy is present. Ifso, intensified scrutiny is applicable.

Assume, on the other hand, that no facially suspect classificationexists but that the government action discriminates in effect againstracial minorities, resident aliens, women, or illegitimates. Under theSupreme Court's cases, such de facto discrimination is not a suspector semi-suspect classification unless the government had a purpose toharm members of such groups. 8 In short, non-facial classificationsagainst these groups do not trigger intensified scrutiny unless theydiscriminate in effect and purpose.

This discriminatory-purpose requirement received its classicstatement in Personnel Administrator v. Feeney,"9 where the Courtstated, " 'Discriminatory purpose,' however, implies more than in-tent as volition or intent as awareness of consequences. . . . It im-plies that the decisionmaker, in this case a state legislature, selectedor reaffirmed a particular course of action at least in part 'becauseof,' not merely 'in spite of,' its adverse effects upon an identifiablegroup."'4

0

37. See supra notes 28-31 and accompanying text.38. E.g., Personnel Administrator v. Feeney, 442 U.S. 256 (1979); Arlington Heights v.

Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229(1976); Jefferson v. Hackney, 406 U.S. 535 (1972).

39. 442 U.S. at 279.40. The Arlington Heights case explains the evidentiary requirements for proving dis-

criminatory purpose. The court should analyze the totality of the circumstances to discernwhether a purpose to harm a protected group was present. Proof of adverse impact is a goodstarting point, but only if the discriminatory effect is substantial and not readily explainable onother grounds. The court should then examine the general history of the government entity todetermine whether it has engaged in any other illegal discrimination. Next, the court shouldevaluate the historical background of the specific decision, looking for direct or circumstantialevidence of discriminatory purpose. Direct evidence includes prior statements in public meet-ings, reports, or minutes, and, if appropriate, trial testimony by the responsible officials, al-though the Court has cautioned that putting officials on the stand is "usually to be avoided."Arlington Heights, 429 U.S. at 268 n.18. Circumstantial evidence includes evidence that thechallenged decision was a sudden change of policy, involved a departure from the normal

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Thus, before invoking the suspect classification strand of equalprotection law as a basis for intensified scrutiny, one must be surethat the challenged government action classified on the basis of race,alienage, gender, or illegitimacy, either on its face or in effect andpurpose. This is a standard ingredient in each of the four lines ofsuspect classification law.'

1) Classifications Based on Race, National Origin, orEthnicity

The core purpose of the equal protection clause was to protectrecently emancipated blacks from government discrimination. Thus,the Court has long held that racial classifications disfavoring blacksare normally not allowed.4'2 The Court has extended this core re-striction to classifications disfavoring other racial minorities, ethnicminorities, and minorities based on national origin.43 Such classifica-tions are subject to strict scrutiny." They violate the equal protectionclause unless they are necessary to further a compelling governmentinterest.'

policy used in similar areas, or resulted from a departure from normal procedures. Indeed,anything about the sequence of events that suggests a purpose to harm the members of aprotected group would be relevant.

Claimant has the initial burden of proving that the desire to burden the protected classwas "a motivating factor." Id. at 266. If claimant fails to carry this burden, the classification isnot suspect, and rationality review applies. However, if claimant proves that a discriminatorypurpose was present, the burden shifts to the government to prove that the discriminatoryeffect was entirely the result of factors other than invidious intent (i.e., that the same resultwould have occurred even without the discriminatory purpose). If the government fails to carrythis burden, strict scrutiny is applicable. If, on the other hand, the government proves that thediscriminatory effect was the result of other legitimate, racially neutral purposes, rationalityreview is applicable unless the claimant can prove that the proffered neutral purposes are merepretexts and that the actual purpose was discriminatory.

41. There is one exception. Claimants in school desegregation cases may prevail byshowing recent actions having a discriminatory impact but no discriminatory purpose if theschool district engaged in intentional discrimination before the limitations period. Dayton Bd.of Educ. v. Brinkman, 443 U.S. 526 (1979). If, for example, a predicate of pre-Brown de juresegregation is established, recent de facto discrimination is enough to trigger strict scrutiny.

42. The first case using the equal protection clause to strike down a classification disfa-voring blacks was Strauder v. West Virginia, 100 U.S. 303 (1879), which held unconstitu-tional a statute restricting eligibility for jury service to whites.

43. E.g., Korematsu v. United States, 323 U.S. 214 (1944) (holding that discriminationagainst persons of Japanese origin is presumptively unconstitutional).

44. E.g., Palmore v. Sidoti, 466 U.S. 429 (1984); Loving v. Virginia, 388 U.S. 1 (1967);McLaughlin v. Florida, 379 U.S. 184 (1964); Korematsu,'323 U.S. 214 (1944).

45. A core purpose of the Fourteenth Amendment was to do away with all gov-ernmentally imposed discrimination based on race. . . . Such classifications aresubject to the most exacting scrutiny; to pass constitutional muster, they must bejustified by a compelling governmental interest and must be 'necessary . . . to

EQUAL PROTECTION

a) Did the Government Use a Classification Based on Race,National Origin, or Ethnicity?

In applying the rule that racial classifications are subject tostrict scrutiny, the first question is whether the government used aracial classification.' 6 If the government action discriminates on itsface, on the basis of race, intensified scrutiny is applicable. If, on theother hand, the government action does not involve facial discrimina-tion, then the Feeney evil purpose test is applicable, and in order totrigger strict scrutiny, claimant must show that the government ac-tion discriminates in effect and purpose on the basis of race."7

b) Did the Government Satisfy Strict Scrutiny?Strict scrutiny applies to all racial classifications,' but the

treatment of "disadvantaging" classifications that harm minoritiesand "benign" classifications that benefit minorities are sufficientlydifferent to merit separate discussion.

(1) Classifications Disfavoring MinoritiesRacial classifications harming minorities-so-called dis-

advantaging racial classifications-are subject to the strictest scru-tiny." Such classifications are subject to a strong presumption of un-constitutionality. They violate the equal protection clause unless theyare necessary to further a compelling government interest. To justifysuch a classification, the government must prove the following: (1) ithas an actual compelling interest, (2) the classification is substan-tially and demonstrably effective in advancing that interest, and (3)use of the racial classification is necessary to further that interest(i.e., the classification is the least onerous alternative available forfurthering the interest). 50

the accomplishment' of their legitimate purpose ....Palmore, 466 U.S. at 432-33.

46. The term "racial classifications" will be used in this article to denote classificationsbased on race, national origin, or ethnicity.

47. See supra notes 38-40 and accompanying text. Government action that discriminatesagainst a racial group in effect but not in purpose is subject only to rationality review unlesssome other basis for intensified scrutiny is applicable.

48. City of Richmond v. H.A. Croson Co., 109 S. Ct. 706 (1989).49. See cases cited supra note 44.50. See cases cited supra note 44.

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(a) Does the Racial Classification Further a CompellingGovernment Interest?

To satisfy the first prong of strict scrutiny, the government mustprove that its disadvantaging racial classification furthers a compel-ling interest. This prong has two components: (a) the governmentmust have actually intended that its classification further a compel-ling (very strong) interest, and (b) the classification must be a sub-stantially effective method for furthering that interest."

(1) Compelling InterestThe government must prove that the racial classification was

adopted to further a compelling government interest. Such aninterest must, of course, be constitutionally permissible." It mustalso have been the government's actual purpose for adopting theclassification; courts will not accept speculations of counsel aboutconceivable purposes when strict scrutiny is applicable. Finally, theinterest must be very strong. Avoiding a major military catastropheis a compelling interest,5 8 but most government interests are notstrong enough to meet this stringent test.

(2) Substantially Effective MeansEven if the government has a compelling purpose, the racial

classification violates the equal protection clause unless thegovernment can prove that the classification is a substantiallyeffective method for furthering that interest. If the classification isnot demonstrably effective in achieving the government's purpose,there is no compelling justification for using the racial classification,and the government cannot satisfy strict scrutiny.

(b) Is the Racial Classification Necessary to Further theCompelling Interest?

The final prong of strict scrutiny requires the government toprove that the racial classification is a necessary means for furtheringthe compelling interest." In other words, the racial classification

51. This test is often not clearly articulated in the Court's opinions, but it is an impor-tant component of strict scrutiny. Cf infra notes 180-81 and accompanying text.

52. For example, a purpose to keep the races separate to maintain racial purity wouldbe constitutionally impermissible and therefore would not qualify as a compelling interest.

53. Korematsu v. United States, 323 U.S. 214, 223 (1944).54. The Court usually labels this the "second" prong of strict scrutiny, but it is really

the third component, since the first prong has two components. See Galloway, supra note 8, at

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must be the least onerous alternative available to achieve the govern-ment's purpose. If any less onerous method is available, the racialclassification is not necessary, and the government must use the lessonerous alternative rather than the racial classification. 5 The gov-ernment has the burden of proof regarding necessity and must provethat no less onerous alternative exists.56

Strict scrutiny is always a difficult test to meet, but the Courtapplies it with special strictness in dealing with disadvantaging racialclassifications. Even if the government has a rather powerful justifi-cation that might be sufficient to justify other kinds of governmentaction that are subject to strict scrutiny,5 7 the Court is very unlikelyto approve a disadvantaging racial classification." Even here, how-ever, the rule is not tantamount to an absolute ban. In Korematsu v.United States," for example, 'the Court held that excluding Japanesepersons from the West Coast during World War II did not violatethe equal protection clause because it was justified by overwhelmingmilitary need.

(2) Benign Racial Classifications Disfavoring the White MajorityRacial classifications disfavoring whites are also subject to strict

scrutiny. 60 Protecting whites was certainly not the core purpose ofthe equal protection clause. Nor are whites in need of special judicialprotection because they are unable to use the normal political processto advance their interests.6 Therefore, three Justices-Brennan,Marshall, and Blackmun-have concluded that benign racial classifi-cations should be subject to intermediate rather than strict scrutiny."2However, five other Justices-Rehnquist, Scalia, O'Connor, Ken-nedy, and White-believe that strict scrutiny is the controlling testfor benign racial classifications. 8 Justice Stevens does not accept the

450, 454.55. Another synonym for "necessary" is "narrowly tailored."56. Confusion exists regarding whether the government must use less onerous alterna-

tives that are not as effective as the challenged classification.57. For example, content-based infringements of free speech, or interference with free

exercise of religion.58. This particularly intense version of strict equal protection scrutiny is justified pre-

cisely because the original core purpose of the equal protection clause was to ban governmentdiscrimination against racial minorities.

59. 323 U.S. 214, 223 (1944).60. City of Richmond v. H.A. Croson Co., 109 S. Ct. 706 (1989).61. Cf United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938).62. E.g., Fullilove v. Klutznick, 448 U.S. 448 (1980); Board of Regents of the Univ. of

Cal. v. Bakke, 438 U.S. 265 (1978).63. City of Richmond, 109 S. Ct. at 712.

1989]


strict scrutiny test and would apply a sliding scale version of ration-ality review." '

Since a majority of the current Justices are apparently commit-ted to strict scrutiny of benign racial classifications,", defenders ofracially specific affirmative action programs will have to overcome astrong presumption of unconstitutionality. They will have to provethat the benign classification furthers a compelling interest"0 and isnarrowly tailored.6"

The Justices agree that the interest in remedying the effects ofpast discrimination is sufficiently compelling to support a benign ra-cial classification.68 The Court has also suggested that achieving anethnically diverse student body is sufficient to support a racially spe-cific special admission program at a graduate school.69 On the otherhand, remedying past societal discrimination and providing minorityrole models are not sufficiently important.70

The Justices also agree that the benign racial classification mustbe a substantially effective and necessary (narrowly tailored) meansfor advancing the government's compelling interest.71 Moreover,there is substantial agreement regarding the factors that should beconsidered in scrutinizing the means. "In determining whether race-conscious remedies are appropriate, we look to several factors, in-cluding the necessity of the relief and the efficacy of alternative rem-edies, the flexibility and duration of the relief, including the availa-bility of waiver provisions; the relationship of the numerical goals tothe relevant labor market; and the impact of the relief on the rights

64. E.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 313 (1986) (Stevens, J., dis-senting). The classic statement of Stevens' sliding scale rationality review approach is in thegender classification case Craig v. Boren, 429 U.S. 190, 211-14 (1976) (Stevens, J.,concurring).

65. City of Richmond does not necessarily require the application of strict scrutiny to allbenign racial classifications. Both the City of Richmond and its city council have black majori-ties. Thus, narrowly construed, the case only held that strict scrutiny applies when the major-ity advantages itself. Perhaps Justice White will return to his original view that affirmativeaction on behalf of minorities is subject to intermediate scrutiny. See Bakke, 438 U.S. at 369(Brennan, White, Marshall, and Blackmun, dissenting in part). But that seems unlikely.

66. City of Richmond, 109 S. Ct. at 723-24.67. Id. at 727-28.68. E.g., United States v. Paradise, 480 U.S. 149, 166-67 (1987); Local 28 of Sheet

Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 451 (1986); Wygant, 476 U.S.. 267(1986).

69. Bakke, 438 U.S. at 314.70. Wygant, 476 U.S. 267 (1986).71. Note, however, that a strict least-onerous-alternative requirement is not applicable

to court orders designed to remedy past discrimination. Paradise, 480 U.S. at 187-88.

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of third parties." 2Thus, for example, the Court upheld the use of race as one

factor in making admissions decisions at University of CaliforniaDavis Medical School but rejected a racial quota system as unneces-sary.7 And the Court upheld a racial quota for promotions in theAlabama Highway Patrol because it was necessary to overcome de-fendants' extreme recalcitrance. 4 But the Court struck down a col-lective bargaining agreement provision requiring out-of-order layoffsof public school teachers, mainly because it inflicted too much harmon a narrow group of innocent white teachers. 5

2) Classifications Based on Resident AlienageCertain classifications that disfavor resident aliens are suspect

and, like racial classifications, are unconstitutional unless the govern-ment can satisfy strict scrutiny. The strong presumption that alien-age-based classifications are unconstitutional does not apply, how-ever, to the federal government or to state classifications excludingaliens from important political functions involving the exercise ofdiscretion.

As in the case of racial classifications, the analysis of alienage-based classifications proceeds in two steps. One must determine firstwhether the government has classified on the basis of alienage. If so,one must next determine what level of means-end scrutiny is appli-cable and whether that test is satisfied.

a) Did the Government Use a Classification Based onResident Alienage?

The first question is whether the government classified on thebasis of resident alienage. Intensified scrutiny of alienage classifica-tions applies only when the aliens who are harmed have been admit-ted to resident status by the federal government.76 If the governmentaction that harmed claimant discriminated on its face against aliens,intensified scrutiny may be applicable. If, on the other hand, the gov-

72. Id. at 171.73. Bakke, 438 U.S. at 318.74. Paradise, 480 U.S. at 186.75. Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986). However, the Court has

approved a one-black-for-each-white promotional quota, holding that the impact on white em-ployees was not as severe as the impact involved in a layoff. Paradise, 480 U.S. at 182.

76. Classifications disfavoring illegal (nonresident) aliens are subject to rationality re-view. Henceforth, all references to aliens will be limited to resident aliens unless otherwisespecified.

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ernment action did not involve a facial alienage-based classification,the Feeney evil purpose test is applicable," and, in order to triggerintensified scrutiny, claimant must show that the government actiondiscriminated in effect and purpose on the basis of alienage. 8

b) Did the Government Satisfy the Applicable Level ofMeans-End Scrutiny?

Unlike other suspect and semi-suspect classifications, alienage-based classifications are subject to different intensities of means-endscrutiny. The particular level of scrutiny depends on whether theclassification was imposed by the federal or state government andwhether the classification concerns a political function. The ensuingdiscussion focuses first on state alienage classifications. The rulesconcerning the federal government are discussed later.

(1) State Alienage ClassificationsAs a general rule, state classifications disfavoring resident aliens

are suspect and unconstitutional, unless the government can satisfystrict scrutiny." A major exception, however, is that such classifica-tions are subject only to rationality review if they exclude aliens fromimportant political functions. In analyzing state alienage classifica-tions, the Court normally asks first whether the political functionexception is applicable.

(a) If the Dougall "Political Function" Exception IsApplicable, the Alienage Classification Satisfies Equal Protection IfIt Is Rational

(1) Is the Political Function Exception Applicable?Beginning in Sugarman v. Dougall,' the Supreme Court has

repeatedly held that state alienage classifications are not suspect ifthey merely impose citizenship requirements for voting or holdingimportant government offices involving formulation, execution, or re-view of broad public policy. This exception is based on the notionthat, while aliens should normally not be disfavored in the distribu-tion of economic benefits, it is appropriate for States to reserve im-

77. See supra notes 38-40 and accompanying text.78. Government action that discriminates in effect but not purpose against aliens is sub-

ject only to rationality review unless some other basis for intensified scrutiny is applicable.79. See cases cited infra note 87.80. 413 U.S. 634 (1973).

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portant government positions for citizens.The Court uses a two-prong test for determining whether the

political function exception applies. "First, the specificity of the clas-sification will be examined: a classification that is substantially over-inclusive or underinclusive tends to undercut the government claimthat the classification serves legitimate political ends. . . . Second,even if the classification is sufficiently tailored, it may be applied inthe particular case only to . . . those officers who . . . 'performfunctions that go to the heart of representative government.' "81

Thus, if confronted with a state classification based on alienage,the first step is to analyze whether the classification is narrowly tai-lored to exclude aliens from important government positions. If thestate haphazardly excludes aliens from some unimportant govern-ment positions while allowing aliens to hold some important posi-tions, this belies the claim that the state's purpose is to reserve im-portant government functions for citizens. In such a case, thepolitical function exception is inapplicable, and the classification issubject to strict scrutiny.

If, on the other hand, the government action is narrowly tai-lored, the next question is whether, in the case at hand, the claimantis excluded from "functions that go to the heart of representativegovernment, ' '8 2 i.e., "elective or important non-elective executive,legislative, and judicial positions" involving "formulation, execution,or review of broad public policy."8" A two-step test is used to answerthis question. First, the exception applies only if the function in-volves discretionary as opposed to ministerial (clearly defined andmandatory) conduct."' Second, the exception applies only to electiveor important nonelective government positions.85

If the state's alienage classification is not a narrowly tailoredmeans for excluding aliens from important government positions in-volving the exercise of discretion over public policy, then the Dougallexception is inapplicable, and strict scrutiny must be satisfied. If, onthe other hand, the Dougall exception is applicable, the classificationis subject only to rationality review. 86

81. Cabell v. Chavez-Salido, 454 U.S. 432, 440 (1982).82. Sugarman, 413 U.S. at 647.83. Bernal v. Fainter, 467 U.S. 216, 222 (1984).84. E.g., id. at 225, which holds that notaries public perform only "clerical and ministe-

rial" functions and are therefore not subject to the Dougall exception.85. E.g., Cabell, 454 U.S. 432 (1982) (deputy probation officers); Ambach v. Norwick,

441 U.S. 68 (1979) (public school teachers); Foley v. Connelie, 435 U.S. 291 (1978) (statetroopers).

86. Ambach, 441 U.S. at 80 ("rational relationship"); Foley, 435 U.S. at 300 ("rational

1989]


(2) Is Rationality Review Satisfied?State classifications that exclude resident aliens from political

functions violate the equal protection clause only if claimant provesthat the classifications do not rationally further any valid governmentinterest. The Court normally adopts a strong presumption of consti-tutionality and applies the deferential rational basis test, holdingsuch classifications constitutional unless the claimant proves that theydo not even arguably further any conceivable government interest.

(b) If the Dougall "Political Function" Exception Is NotApplicable, the Alienage Classification Violates Equal ProtectionUnless Strict Scrutiny Is Satisfied

The general rule is that state classifications disfavoring residentaliens are subject to strict scrutiny."7 Thus, if such a classification ispresent and the Dougall exception is not applicable, the classificationis unconstitutional unless the government shows that the classifica-tion is necessary to further a compelling interest.88 In other words,the government must show that the classification was adopted to fur-ther some compelling interest, is a substantially effective means tofurther that interest, and is necessary (i.e., the least onerous alterna-tive available to further that interest). In most cases, the governmentcannot meet this stringent test, and the alienage classification violatesequal protection. 89

(2) Federal Alienage ClassificationsThe federal government, in contrast to the states, has broad

relationship").87. The landmark case on this point is Graham v. Richardson, 403 U.S. 365 (1971).

Accord Bernal, 467 U.S. 216 (1984); In re Griffiths, 413 U.S. 717 (1973). As the Court put itin Bernal, "As a general matter, a state law that discriminates on the basis of alienage can besustained only if it can withstand strict judicial scrutiny. In order to withstand strict scrutiny,the law must advance a compelling state interest by the least restrictive means available."Bernal, 467 U.S. at 219.

88. See supra notes 50-56 and accompanying text for a more detailed discussion of thecomponents of strict scrutiny as applied to racial classifications. The structure of the analysis isessentially identical when applied to alienage classifications, although the Court's scrutiny maynot be quite as strict as in race cases.

89. See, e.g., Bernal, 467 U.S. 216 (1984) (ban on aliens' serving as notaries public);Nyquist v. Mauclet, 432 U.S. 1 (1977) (denial of state scholarships to aliens); Examining Bd.v. Flores de Otero, 426 U.S. 572 (1976) (ban on aliens' serving as civil engineers); Griffiths,413 U.S. 717 (1973) (ban on aliens' serving as lawyers); Sugarman v. Dougall, 413 U.S. 634(1973) (ban on aliens' holding civil service jobs); Graham, 403 U.S. 365 (1971) (denial ofwelfare benefits to aliens).

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power to impose restrictions on resident aliens. Therefore, federalclassifications disfavoring resident aliens are not suspect; they aresubject to rationality review rather than strict scrutiny. 90

Instead of using the normal deferential rational basis test, how-ever, the Court applies a hybrid, sliding-scale version of rationalityreview for evaluating such classifications. This test focuses first onthe government's ends or interests and, second, on the government'smeans.

(a) End ScrutinyFederal classifications disfavoring resident aliens, like other

classifications subject to rationality review, are unconstitutional un-less they are related to some legitimate government interest. But theCourt has held that the end scrutiny regarding alienage classifica-tions must go a step further and focus on whether the government'sinterest is one that relates to national immigration policy. In makingthis determination, the Court scrutinizes the government's interest ina nondeferential manner, asking for the government's actual purposein adopting the classification, rather than speculating about hypo-thetical purposes that might have motivated the classification.91

(b) Means ScrutinyThe Court appears to use a two-tier test for evaluating whether

federal alienage classifications are sufficiently effective to withstandrationality review. If the Court determines that the classification wasintended to serve some national interest relating to immigration pol-icy, then it applies a deferential version of rationality review regard-ing the means. In other words, the Court upholds such classificationsif they are arguably effective methods for furthering national inter-ests. 2 If, on the other hand, the Court determines that the classifica-tion was not intended to serve a purpose related to national immigra-tion policy, then it applies a nondeferential version of rationalityreview regarding the means. In other words, it insists on an actualdemonstration that the classification is effective in achieving itspurpose. 93

90. E.g., Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (exclusion of aliens fromcivil service jobs); Mathews v. Diaz, 426 U.S. 67 (1976) (restriction on eligibility of aliens forMedicare benefits).

91. E.g., Hampton, 426 U.S. 88 (1976); Mathews, 426 U.S. 67 (1976)92. E.g., Hampton, 426 U.S. 88 (1976); Mathews, 426 U.S. 67 (1976)93. E.g., Hampton, 426 U.S. at 115-16.

1989]


3) Classifications Based on GenderSince the 1970's, the Supreme Court has held that classifica-

tions based on gender are semi-suspect and violate the equal protec-tion clause unless they satisfy intermediate means-end scrutiny (i.e.,unless they are substantially related to an important government in-terest).94 As in the case of racial and alienage classifications, theanalysis of gender-based classifications proceeds in two steps. First,there must be a determination of whether the government has classi-fied on the basis of gender. If so, the next step is to ascertain whetherintermediate scrutiny is met.

a) Did the Government Use a Classification Based onGender?

In applying the rule that gender-based classifications are subjectto intensified scrutiny, the first question is whether the governmentused a gender-based classification. If the government action discrimi-nates, on its face, on the basis of gender, intensified scrutiny is appli-cable. If, on the other hand, the government action does not involvefacial gender-based discrimination, then the Feeney evil purpose testapplies, and in order to trigger intensified scrutiny, the claimantmust show that the government action discriminates in effect andpurpose on the basis of gender.95

b) Did the Government Satisfy Intermediate Scrutiny?Classifications based on gender are subject to intermediate scru-

tiny.96 Such classifications are subject to an intermediate presump-tion of unconstitutionality. They violate the equal protection clauseunless they are substantially related to an important government in-terest. 97 "Substantially related" means both substantially effectiveand necessary.

In short, to justify a gender-based classification, the government

94. Craig v. Boren, 429 U.S. 190 (1976); cf. Mississippi Univ. for Women v. Hogan,458 U.S. 718 (1982).

95. See supra notes 38-40 and accompanying text. Government action that discriminatesagainst males or females in effect but not in purpose is subject only to rationality review unlesssome other basis for intensified scrutiny is present.

96. This is true whether the classification disfavors women or men.97. E.g., Mississippi Univ. for Women, 458 U.S. 718 (1982); Craig, 429 U.S. 190

(1976). The initial and classic formulation of the test was in Craig, where the Court said, "Towithstand constitutional challenge, previous cases establish that classifications by gender mustserve important governmental objectives and must be substantially related to achievement ofthose objectives." Craig, 429 U.S. at 197.

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must prove both that it has acted to further an actual important in-terest and the classification is substantially related to that interest(i.e., substantially effective and necessary for furthering that inter-est). This test is not as stringent as strict scrutiny, but it does requirethe government to show an "exceedingly persuasive justification.""

(1) Important Government InterestTo satisfy the equal protection clause, the government must

prove that its gender-based classification was adopted to further animportant interest (i.e., a weightier interest than the merely validinterest required by rationality review, but not necessarily as over-whelming an interest as needed to satisfy the compelling interest re-quirement of strict scrutiny). Such an important interest must, ofcourse, be constitutionally permissible, and it must be the govern-ment's actual purpose rather than merely a conceivable purpose sug-gested by a government lawyer or dreamed up by a judge.99 Admin-istrative convenience is usually not sufficient to satisfy thisrequirement. 0" Moreover, purposes that reflect archaic stereotypesor perpetuate archaic gender-based roles are insufficient."0 Yet theCourt has recognized numerous interests as sufficiently important tosatisfy intermediate scrutiny.10 2

(2) Substantial RelationTo satisfy the equal protection clause, the government must also

prove that its gender-based classification is "substantially related toachievement of those [important] objectives. 0 ' The substantial rela-tion test has been called "opaque"' ' and has caused confusion anddispute, but it now appears to be settled that it requires that the

98. Mississippi Univ. for Women, 458 U.S. at 724; Kirchberg v. Feenstra, 450 U.S. 455,461 (1981); Personnel Administrator v. Feeney, 442 U.S. 256, 273 (1979).

99. E.g., Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).100. E.g., Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142 (1980); Craig, 429 U.S.

190 (1976); Reed v. Reed, 404 U.S. 71 (1971).101. E.g., Mississippi Univ. for Women, 458 U.S. at 724-25; Califano v. Webster, 430

U.S. 313 (1977). For example, a government purpose to keep women in homes to raise health-ier children would be insufficient.

102. Such important interests include: remedying past discrimination, Mississippi Univ.for Women, 458 U.S. at 718 and Califano, 430 U.S. 313 (1977); traffic safety, Craig, 429 U.S.190 (1976); helping the needy, Frontiero v. Richardson, 411 U.S. 677 (1973); preparing adraft of combat troops, Rostker v. Goldberg, 453 U.S. 57 (1981); preventing illegitimate teen-age pregnancies, Michael M. v. Superior Ct., 450 U.S. 464 (1981); and protecting reasonableexpectations in retirement funds, Heckler v. Mathews, 465 U.S. 728 (1984).

103. Craig, 429 U.S. at 197.104. Michael M., 450 U.S. at 474 n.10.

1989]


classification be substantially effective and necessary.

(a) Substantially Effective MeansFirst, the government must prove that its gender-based classifi-

cation is a substantially effective method for achieving its importantinterest.' 0 5 For example, if gender is merely a loosely fitting proxyfor some other relevant trait, the gender-based classification may notbe sufficiently effective to withstand intermediate scrutiny.'0 6 Simi-larly, if the effect of the classification is actually perverse, the classi-fication violates equal protection.' 07 Thus, the Court will carefullyscrutinize supposedly remedial classifications to ensure they do notharm the group they were intended to protect.

(b) Narrowly Tailored MeansAfter some initial confusion and a few contrary statements,0 8

the Court has apparently decided that the substantial relation testhas a necessity component. For example, the Court struck down theexclusion of men from a nursing school in part because the "recordin this case is flatly inconsistent with the claim that excluding menfrom the School of Nursing is necessary to reach any of MUW'seducational goals."' 0 9 Thus, if a less onerous alternative is availablefor furthering the government's important purpose, the gender-basedclassification violates equal protection. If, for example, a gender-neu-tral method, such as holding individual hearings, would accomplishthe task, the government may not use a gender-basedclassification.' 10

105. E.g., Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142 (1980); Craig, 429 U.S.190 (1976); Frontiero, 411 U.S. 677 (1973). The government has the burden of proof. SeveralJustices have suggested that courts should defer to the legislative and executive branches onthis issue, but it is doubtful that this is the majority rule. See, e.g., Rostker, 453 U.S. 57(1981); Michael M., 450 U.S. 464 (1981).

106. Craig, 429 U.S. 190 (1976).107. In Wengler, 446 U.S. 142 (1980), for example, the classification seemed, at first

glance, to favor women by making them automatically eligible for survivors' benefits. On closerinspection, however, the classification actually harmed women by making it harder for them toprovide financial security for their survivors, so the Court struck down the classification.

108. E.g., Michael M., 450 U.S. at 473 ("It is argued that this statute is not neces-sary. . . .The relevant inquiry, however, is not whether the statute is drawn as precisely as itmight have been ....").

109. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 731 (1982).110. E.g., Orr v. Orr, 440 U.S. 268, 281-82 (1979). Some uncertainty remains whether

the less onerous alternative must be "equally effective" in order to invalidate the classification.E.g., Michael M., 450 U.S. at 473 ("we cannot say that a gender-neutral statute would be aseffective ....").

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4) Classifications Based on IllegitimacySimilar to classifications based on gender, classifications based

on illegitimacy are semi-suspect and violate the equal protectionclause unless they satisfy intermediate scrutiny,"'1 or unless they are"substantially related to an important government objective." 11 Asin the case of racial and gender-based classifications, the analysis ofclassifications based on illegitimacy proceeds in two steps. The firststep is to determine whether the government has classified on thebasis of illegitimacy. If so, there must be a determination of whetherintermediate scrutiny is satisfied.

a) Did the Government Use a Classification Based onIllegitimacy?

In applying the rule that classifications disfavoring illegitimatesare subject to intensified scrutiny, the first question is whether thegovernment used an illegitimacy-based classification. If the govern-ment action that harmed claimant discriminated, on its face, againstillegitimates, intermediate scrutiny applies. If, however, the govern-ment action did not involve facial discrimination against illegitimates,then the Feeney evil purpose test is applicable,118 and in order totrigger intensified scrutiny, the claimant must show that the govern-ment action discriminates in effect and purpose on the basis ofillegitimacy.""

111. Clark v. Jeter, 108 S. Ct. 1910, 1914 (1988). The first case suggesting that classifi-cations disfavoring illegitimates are subject to intensified scrutiny was Levy v. Louisiana, 391U.S. 68 (1968). Intensified scrutiny is appropriate because, historically, illegitimates have beenthe victims of discrimination. In addition, illegitimacy is a characteristic for which the individ-ual is not responsible and which is not relevant to individual fitness. Moreover, discriminationagainst illegitimates interferes with fundamental rights concerning family structure and childrearing.

112. Clark, 108 S. Ct. at 1914. Before Clark, the test for illegitimacy classifications was"somewhat heightened review" rather than intermediate scrutiny. City of Cleburne v.Cleburne Living Center, 473 U.S. 432, 441 (1985). Under this test, the classification wasunconstitutional unless it was "substantially related to a legitimate state interest." Mills v.Hableutzel, 456 U.S. 91, 99 (1982) (emphasis added); cf Picket v. Brown, 462 U.S. 1, 8(1983). In Clark, the Court raised the level of scrutiny from somewhat heightened scrutiny tointermediate scrutiny without even mentioning the change. In view of the Court's "zigzagcourse" in illegitimacy cases, the new test may not stick. G. GUNTHER, CONSTITUTIONALLAW 678 (11th ed. 1985).

113. See supra notes 38-40 and accompanying text.114. Government action that discriminates against illegitimates in effect but not in pur-

pose is subject only to rationality review unless some other basis for intensified scrutiny isapplicable.

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b) Did the Government Satisfy Intermediate Scrutiny?Classifications based on illegitimacy are subject to intermediate

scrutiny." 5 Such classifications are subject to a presumption of un-constitutionality. They violate the equal protection clause unless thegovernment can prove that they are substantially related to an im-portant government interest. As in the case of gender-based classifi-cations, "substantially related" means both substantially effectiveand necessary.

In short, to justify a classification based on illegitimacy, the gov-ernment must prove that the classification is both supported by anactual important interest and substantially related to that interest(i.e., substantially effective and necessary for furthering that inter-est). This test is not as stringent as strict scrutiny, but it is morestringent than the rational relation basis test used when intensifiedscrutiny is not applicable.

(1) Important Government InterestTo satisfy the equal protection clause, the government must

prove that its illegitimacy-based classification was adopted to furtheran important government interest. Such an interest must have beenthe government's actual purpose rather than merely a conceivablepurpose hypothesized after the fact by an attorney or judge." 6 Theinterest in promoting legitimate family relationships is insufficient tojustify imposing sanctions on illegitimate children." 7 On the otherhand, the interest in preventing stale and fraudulent child supportclaims is sufficient to satisfy intermediate scrutiny.""

(2) Substantial RelationTo satisfy the equal protection clause, the government must also

prove that its illegitimacy-based classification is substantially relatedto its important interest. This requirement has two components.

(a) Substantially Effective MeansFirst, the government must prove that its illegitimacy-based

classification is a substantially effective method for achieving its im-

115. Clark, 108 S. Ct. 1910 (1988).116. E.g., Trimble v. Gordon, 430 U.S. 762, 776 (1977) ("[W]e will not hypothesize an

additional state purpose .117. Id. at 762.118. Pickett v. Brown, 462 U.S. 1 (1983); Mills v. Habluetzel, 456 U.S. 91 (1982).

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portant interest. For example, a statute eliminating illegitimates'child support rights unless paternity suits are filed within one yearof birth violates equal protection, because it is not "evident that thepassage of twelve months will appreciably increase the likelihood offraudulent claims." '119

(b) Narrowly Tailored Means

Second, the government must prove that its illegitimacy-basedclassification is necessary. Thus, a one-year statute of limitations onpaternity suits by illegitimates violates equal protection, because asthe Court concluded, "[w]e can conceive of no evidence essential topaternity claims that invariably will be lost in only one year

"120

In short, government action that discriminates on its face or ineffect and purpose against illegitimates violates equal protection un-less the government proves that the classification is a substantiallyeffective and necessary means for furthering an important govern-ment interest.

To summarize, if the government's classification that harmedthe claimant discriminates on its face or in effect and purpose on thebasis of race, ethnicity, national origin, resident alienage, gender, orillegitimacy, it violates the equal protection clause unless the appro-priate level of intensified scrutiny is met. 2 ' To date, the Court hasrefused to extend the list of suspect and semi-suspect classificationsbeyond these four types.1

22

If no suspect or semi-suspect classification is present, the nextquestion is whether intensified scrutiny is applicable because thegovernment's classification infringed a fundamental constitutionalright.

119. Mills, 456 U.S. at 101.

120. Id. The State had no statute of limitations for child support claims by legitimatechildren.

121. In a few cases, rationality review is applicable. E.g., federal alienage classificationsand state alienage classifications subject to the political function exception. See supra notes 80-86, 90-93 and accompanying text.

122. E.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (classifica-tions disfavoring mentally retarded persons are not suspect); Massachusetts Bd. of Retirementv. Murgia, 427 U.S. 307 (1976) (classifications disfavoring the elderly are not suspect); Jamesv. Valtierra, 402 U.S. 137 (1971) (classifications disfavoring the poor are not suspect).

1989]


b. Fundamental Rights Strand1) In GeneralGovernment classifications that infringe fundamental rights of

the members of a class are subject to strict scrutiny. The basic struc-ture of fundamental rights analysis may be summarized as follows:Equal Protection/Fundamental Rights; Basic Analysis1. Applicability: Does the classification infringe a fundamental

right?a. Fundamental right?b. Infringement?

2. Compliance: Is strict scrutiny satisfied?a. Does the classification further a compelling interest?

1) Compelling interest?2) Substantially effective means?

b. Is the classification necessary?

a) Does the Government Classification Infringe aFundamental Right?(1) Fundamental Right?

If a claimant has been harmed by a government classificationand the lawyer wishes to determine whether the fundamental rightsdoctrine is applicable, the lawyer should ask first whether the chal-lenged government action adversely affects any of the claimant's fun-damental rights? The test for determining whether a particular rightis fundamental is whether the right is "explicitly or implicitly guar-anteed by the Constitution."' 23 Freedom of speech, for example, is afundamental right, because the first amendment explicitly protectsit. 2 Similarly, the noninterpretive right of privacy is a fundamentalright, because the Court has held that it is protected by the due pro-

123. San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973).[T]he key to discovering whether education is 'fundamental' is not to be foundin comparisons of the relative societal significance of education as opposed tosubsistence or housing. Nor is it to be found by weighing whether education isas important as the right to travel. Rather, the answer lies in assessing whetherthere is a right to education explicitly or implicitly guaranteed by theConstitution.

Id.124. Thus, government classifications infringing the free speech of class members are

subject to strict scrutiny. E.g., Carey v. Brown, 447 U.S. 455 (1980); Police Dep't v. Mosley,408 U.S. 92 (1972).

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cess clauses.' And the rights of equal voting weight126 and inter-state migration 27 are also fundamental because they are implicitlyprotected by the Constitution.

(2) Infringement?If the government action burdens a fundamental right of mem-

bers of the claimant's class, the next question is whether the burdenis sufficiently substantial to be recognized as an infringement. Ingeneral, the totality of the circumstances must be examined from acommon sense point of view and there must be a determinationwhether the government's action substantially interferes with theclaimant's exercise of the right. Obviously, a ban on the exercise ofthe right backed by threat of legal sanctions is an infringement.' 28But a lesser interference also qualifies as an infringement if it sub-stantially deters the exercise of the right or makes the exercise of theright materially more difficult.' 9

If the government's classification does not infringe a fundamen-tal right, then one must look to the suspect classification strand orrationality review for the proper equal protection analysis. If, on theother hand, the government's action does infringe a fundamentalright of class members, strict scrutiny usually applies.

b) Is Strict Scrutiny Satisfied?The strict scrutiny test used here is structurally the same as that

used in dealing with racial classifications.'3 The government actionis subject to a strong presumption of unconstitutionality, and theburden is on the government to prove that the classification is neces-sary to further a compelling interest.' 8' In other words, the govern-ment must prove that the classification was designed to serve an ac-tual legitimate and compelling (very strong) interest, that theclassification is a substantially effective means for furthering that

125. E.g., Zablocki v. Redhail, 434 U.S. 374 (1978) (right to choose a marriage part-ner); Skinner v. Oklahoma, 316 U.S. 535 (1942) (right not to be sterilized).

126. E.g., Dunn v. Blumstein, 405 U.S. 330 (1972); Kramer v. Union Free SchoolDist., 395 U.S. 621 (1969).

127. E.g., Shapiro v. Thompson, 394 U.S. 618 (1969).128. E.g., Kramer, 395 U.S. 621 (1969).129. E.g., Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986).130. See supra notes 50-56 and accompanying text.131. E.g., Dunn v. Blumstein, 405 U.S. 330, 342 (1972) ("necessary to promote a com-

pelling governmental interest"); Kramer, 395 U.S. at 627 ("necessary to promote a compellingstate interest").

1989]


purpose, and that no less onerous alternative is, available.In recent years, the Court has suggested that the fundamental

rights strand of equal protection theory may be redundant and slatedfor cancellation. If government action infringes the claimant's funda-mental right, strict scrutiny should be applicable on that basis alonewithout reference to the equal protection clause.182 For example, acontent-based infringement of free speech rights of labor unions trig-gers strict scrutiny under the first amendment itself, so the equalprotection clause is not needed.183 Similarly, selective interferencewith the right of privacy can be curtailed under the due processclauses without help from equal protection theory.

However, there are at least four lines of fundamental rightscases that are uniquely associated with the equal protection clauseand which deserve more detailed discussion here: (1) the right ofvoters to participate on an equal basis in elections, (2) the right ofpolitical candidates and parties to ballot access, (3) the right of inter-state migration, and (4) the right of meaningful access to certain ju-dicial proceedings. The next four sections discuss these topics.

2) The Right to Equal Voting WeightIn a long series of cases beginning with Reynolds v. Sims,"" the

Supreme Court has held that there is a fundamental right to haveone's vote counted equally when the government adopts elections asthe method for choosing officials.185 This fundamental right appearsto be grounded on the equal protection clause itself, on the policythat the right to an equal vote is "preservative of all rights,"1 ' andon the judgment that legislators cannot be trusted to correct abuses

132. E.g., Soto-Lopez, 476 U.S. at 904-05 n.4 ("Of course, regardless of the label weplace on our analysis-right to migrate or equal protection-once we find a burden on theright to migrate the standard is the same.").

133. E.g., Carey v. Brown, 447 U.S. 455, 471 (1980) (Stewart, J., concurring); cf. Sha-piro v. Thompson, 394 U.S. 618, 659 (1969) (Harlan, J., dissenting).

134. 377 U.S. 533 (1964).135. Dunn, 405 U.S. at 336 ("this Court has made clear that a citizen has a constitu-

tionally protected right to participate in elections on an equal basis..."); Reynolds, 377 U.S.533 (1964). The fundamental right here is not a right to vote; it is a right to equal participa-tion if the government chooses to use elections as the method for selecting officials. E.g., SanAntonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 35 n.78 (1973) ("the protected right,implicit in our constitutional system, to participate in state elections on an equal basis withother qualified voters whenever the State has adopted an elective process for determining whowill represent any segment of the State's population").

136. Harper v. Virginia Bd. of Elecs., 383 U.S. 663, 667 (1966) ("'the politicalfranchise of voting' ... [is] a 'fundamental political right, because preservative of allrights' ").

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in the very voting process that brought them into office.'"In short, infringements of the fundamental right to have one's

vote counted equally are, as a general rule, subject to strict scrutiny.But there are also several exceptions to this general rule involvinginfringements that are subject only to rationality review. The follow-ing sections discuss the general rule and then the exceptions.

a) General Rule: Strict Scrutiny

If none of the exceptions listed in the next section applies, aninfringement of the right to equal voting weight is unconstitutionalunless strict scrutiny is satisfied. 38

The first question is whether the claimant's right to participatein an election on an equal basis has been infringed. Of course, anoutright denial of the right to vote is an infringement. " Similarly,postponing the right until one has resided in the area for an ex-tended period is an infringement. " Conditioning the right on pay-ment of a poll tax is also an infringement. "1 And diluting the valueof the claimant's vote by means of election districts having unequalpopulation is an infringement. 2

Such infringements violate the equal protection clause unlessthey are "necessary to promote a compelling government interest." '"In the vast majority of cases, this test has been strict in theory andfatal in fact, but some infringements have survived strict scrutiny.For example, the Court has upheld a 50-day durational residencyrequirement as necessary to serve the compelling interest in accuratevoter lists," And the Court has approved a restriction on voting inprimaries designed to inhibit raiding by voters from other parties.""

137. See, e.g., Kramer v. Union Free School Dist., 395 U.S. 621, 628 (1969) ("Thepresumption of constitutionality and the approval given 'rational' classifications in other typesof enactments are based on an assumption that the institutions of state government are struc-tured so as to represent fairly all of the people. However, when the challenge to the statute isin effect a challenge of this basic assumption, the assumption can no longer serve as the basisfor presuming constitutionality.").

138. E.g., Dunn, 405 U.S. 330 (1972); Kramer, 305 U.S. 621 (1969); Reynolds, 377U.S. 533 (1964).

139. E.g., Kramer, 305 U.S. 621 (1969).140. E.g., Dunn, 405 U.S. 330 (1972).141. E.g., Harper v. Virginia Bd. of Elecs., 383 U.S. 663 (1963).142. E.g., Reynolds, 377 U.S. 533 (1964).143. Dunn, 405 U.S. at 342 (emphasis in original).144. Marston v. Lewis, 410 U.S. 679 (1973); Burns v. Fortson, 410 U.S. 686 (1973).145. Rosario v. Rockefeller, 410 U.S. 752 (1973).

1989]


b) Exceptions: Rationality ReviewNot all restrictions on the right to participate equally in elec-

tions are subject to strict scrutiny. The Court has recognized fiveexceptions involving restrictions that are subject only to rationalityreview. Four of these-restrictions based on citizenship, age, resi-dence, and criminal conviction-are derived from the language of thefourteenth amendment.146 The fifth exception involves restrictions onvoting rights in elections concerning special districts that do not exer-cise "general government power" (i.e., districts that do not makelaws binding on the public or administer traditional governmentfunctions)." '

If one of these exceptions is involved, the restriction on votingrights is presumed to be constitutional and will be upheld unless theclaimant proves it is not rationally related to any legitimate govern-ment interest.

3) The Right of Ballot AccessThe fundamental rights strand of equal protection law also re-

quires intensified scrutiny of government classifications that substan-tially infringe the fundamental right of candidates and political par-ties to be listed on election ballots among the voters' choices. 48 Thishybrid right is based in part on the same reasoning as the right toequal voting weight'49 and in part on the implied first amendmentfreedom of association. 5 ' Infringements of the right of ballot accessare subject to strict scrutiny' 5 ' or perhaps a balancing test with thethumb on claimant's side of the scales.' 52

146. U.S. CONST. amend. XIV, 2 provides that sanctions may be imposed againstStates that deny the right to vote to any "inhabitants of such State, being twenty-onei years ofage, and citizens of the United States..., except for participation in . . . crime. ... Thisimplies that restrictions based on residence, age, citizenship, and criminal conviction arepermitted.

147. Ball v. James, 451 U.S. 355 (1981); cf Salydr Land Co. v. Tulare Lake BasinWater Storage Dist., 410 U.S. 719 (1973).

148. The seminal ballot-access case is Williams v. Rhodes, 393 U.S. 23 (1968).149. Id.150. E.g., Tashjian v. Republican Party, 479 U.S. 208 (1986); Anderson v. Celebrezze,

460 U.S. 780 (1983). In Anderson, for example, the Court relied entirely on the first amend-ment and expressly stated that the equal protection clause was not a basis for the opinion. 1d.This appears to be the current trend.

151. See cases cited infra note 167. Dicta in the plurality opinion in Clements v. Fash-ing, 457 U.S. 957 (1982), purported to limit strict scrutiny to financial burdens, burdens onnew or small political parties, and burdens on independent candidates, but this restriction hasnot received majority support.

152. Anderson, 460 U.S. 780 (1983). If Anderson is taken seriously, strict scrutiny may

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1989] EQUAL PROTECTIONOn the merits, one must first determine whether the challenged

classification infringed the claimant's right of ballot access.' 5 3 Typi-cal infringements include filing fees,"" voter petition require-ments,' 5 5 filing deadlines, 5 ' and exclusion from absentee ballots.' 57

If the government classification imposes only a "de minimis burden"on ballot access, no infringement is present and rationality reviewapplies.15

8

If the government substantially infringed the claimant's right ofballot access, the classification violates the equal protection clause,according to numerous cases decided in the 1960's and 1970's, unlessthe government satisfies strict scrutiny by proving that its conduct isnecessary to further a compelling interest." Strict scrutiny is not asstrict in this context as in some others, however, and many infringe-ments have survived the Court's review.'0 For example, the Courthas accepted as "compelling" the following interests: avoiding voterconfusion and deception,'' maintaining the stability of the politicalsystem,e' maintaining the integrity of elections, 6 ' and requiring apreliminary showing of substantial support.'64

Cases in the 1980's suggest that strict scrutiny is being replacedby a balancing test that requires weighing the harm against theneed. The leading case in this development is Anderson v. Cele-brezze. 65 More recently, Tashjian v. Republican Party' applied amode of analysis that seemed to be a composite of strict scrutiny and

be obsolete in this field. Even before Anderson, there were signs that the Court was not deeplycommitted to strict scrutiny in ballot-access cases. In Bullock v. Carter, 405 U.S. 134 (1972),and Lubin v. Panish, 415 U.S. 709 (1974), the Court referred alternatively to strict scrutinyand rationality review.

153. As usual, one should make a common sense judgment whether the challenged gov-ernment action made claimant's exercise of the right substantially more difficult.

154. Lubin, 415 U.S. 709 (1974); Bullock, 405 U.S. 134 (1972).155. Illinois Bd. of Elecs. v. Socialist Workers Party, 440 U.S. 173 (1979).156. Anderson, 460 U.S. 780 (1983).157. American Party of Texas v. White, 415 U.S. 767 (1974).158. Clements v. Fashing, 457 U.S. 957 (1982); cf. Munro v. Socialist Workers Party,

479 U.S. 189 (1986). In Clements, the plurality upheld restrictions on ballot access for currentoffice holders, stating, "This sort of insignificant interference with access to the ballot needonly rest on a rational predicate .... " Clements, 457 U.S. at 967.

159. E.g., Illinois Bd. of Elecs., 440 U.S. 173 (1979); Storer v. Brown, 415 U.S. 724(1974); Williams v. Rhodes, 393 U.S. 23 (1968).

160. See cases cited infra notes 161-64.161. Jenness v. Fortson, 403 U.S. 431 (1971).162. Storer, 415 U.S. 724 (1974).163. Lubin v. Panish, 415 U.S. 709 (1974).164. Munro v. Socialist Workers Party, 479 U.S. 189 (1986).165. 460 U.S. 780 (1983).166. 479 U.S. 208 (1986).


balancing. At present, the correct analysis is uncertain, and one mustwatch future developments to be sure what test to use.

4) The Right of Interstate MigrationThe right to move from one state and take up residence in an-,

ot

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Basic Equal Protection Analysis

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