Equal Protection: Three Tiers of Scrutiny

The Equal Protection Clause

The Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This guarantee has been applied to the federal government through the Fifth Amendment's Due Process Clause (Bolling v. Sharpe).

Equal protection does not require identical treatment—it requires that government classifications be justified by sufficient governmental interests. The level of justification depends on the nature of the classification and whether a fundamental right is burdened.

Classification-Based Analysis

Equal protection analysis always begins by identifying the classification the law creates. Who is being treated differently? Then the court selects the appropriate tier of scrutiny based on the nature of the classification or whether a fundamental right is burdened.

The tier determines how rigorously the court reviews the government's justification. The three tiers create a hierarchy: strict scrutiny (most demanding), intermediate scrutiny (middle ground), and rational basis review (most deferential).

Facial vs. Facially Neutral Classifications

A law may discriminate on its face (explicitly classifying by race, gender, etc.) or may be facially neutral but applied discriminatorily or adopted with discriminatory intent.

For facially neutral laws, the challenger must prove discriminatory purpose (Washington v. Davis, Village of Arlington Heights)—disparate impact alone is insufficient to trigger heightened scrutiny. This distinction is crucial: the same law might receive rational basis review if facially neutral but strict scrutiny if the government intended to harm a protected group.

Strict Scrutiny

Triggered by these classifications:

Race
National origin
Alienage (with limited exceptions)
Religion

Also triggered when:

A fundamental right is burdened: voting, travel, access to courts, marriage, or privacy.

The Test:

The law must be necessary to achieve a compelling governmental interest. The classification must be narrowly tailored—the least restrictive means available.

Burden of Proof:

On the government.

Practical Effect:

Almost always fatal to the government ("strict in theory, fatal in fact"). Very few laws survive strict scrutiny. Notable exceptions: narrowly tailored affirmative action programs were upheld for decades (Grutter v. Bollinger), though Students for Fair Admissions v. Harvard (2023) effectively ended race-conscious college admissions.

Key Cases:

Korematsu v. United States (race—upheld, now discredited)
Loving v. Virginia (race in marriage—struck down)
Grutter v. Bollinger (affirmative action—upheld, now superseded)
Students for Fair Admissions v. Harvard (affirmative action—struck down)
Graham v. Richardson (alienage)

Intermediate Scrutiny

Triggered by these classifications:

Gender/sex
Nonmarital children (legitimacy)

The Test:

The law must be substantially related to an important governmental interest. The classification must serve the interest—not merely rationally relate to it.

Burden of Proof:

On the government. For gender classifications specifically, the government must provide an "exceedingly persuasive justification" (United States v. Virginia/VMI).

Practical Effect:

The government wins sometimes but must provide real justification. Gender classifications based on stereotypes or overbroad generalizations fail. Classifications based on actual physiological differences (e.g., statutory rape laws in Michael M. v. Superior Court) or remedial purposes may survive.

Key Cases:

Craig v. Boren (establishing intermediate scrutiny for gender)
United States v. Virginia (VMI—"exceedingly persuasive justification")
Mississippi University for Women v. Hogan (nursing school gender restriction struck down)
Nguyen v. INS (citizenship for children of unwed fathers—upheld)

Rational Basis Review

Default for these classifications:

Age
Disability
Wealth
Sexual orientation (though this may be shifting)
Everything not subject to heightened scrutiny

The Test:

The law must be rationally related to a legitimate governmental interest.

Burden of Proof:

On the challenger—the law is presumed constitutional.

Practical Effect:

Almost always upheld. The government can rely on any conceivable legitimate purpose—even one not actually considered by the legislature (FCC v. Beach Communications). The classification need not be perfect; it can be under-inclusive or over-inclusive as long as it is rational.

Notable Exception—"Rational Basis with Bite":

When the classification is motivated by animus rather than a legitimate purpose, even rational basis is not satisfied. City of Cleburne v. Cleburne Living Center (disability—struck down); Romer v. Evans (sexual orientation—struck down); USDA v. Moreno (food stamps—struck down because motivated by "a bare desire to harm a politically unpopular group").

Key Cases:

Railway Express Agency v. New York (advertising on vehicles—upheld)
Williamson v. Lee Optical (eyeglass regulation—upheld)
City of Cleburne (disability—struck down)
Romer v. Evans (sexual orientation—struck down)

Strict Scrutiny

Intermediate Scrutiny

Rational Basis

Classification

Race, national origin, alienage, religion

Gender, legitimacy

Age, disability, wealth, all others

Standard

Necessary to compelling interest

Substantially related to important interest

Rationally related to legitimate interest

Burden of Proof

Government

Challenger

Practical Outcome

Almost always struck down

Government sometimes wins

Almost always upheld

Watch For

Narrow tailoring, least restrictive means

"Exceedingly persuasive justification," no stereotypes

Animus = fatal ("rational basis with bite")

Identifying the Tier—Exam Strategy

On the exam, the first task is always: identify the classification.

If the law facially classifies by race or national origin → strict scrutiny applies. If by gender → intermediate scrutiny. If by age, wealth, disability, or anything else → rational basis.

If the law burdens a fundamental right (voting, travel, marriage, privacy) → strict scrutiny applies regardless of the classification.

If the law is facially neutral, ask: is there discriminatory purpose (Washington v. Davis)? Without discriminatory purpose, a facially neutral law receives only rational basis review, even if it has disparate impact on a protected group. With discriminatory purpose, heightened scrutiny applies.

Hypothetical A

A state law provides that only male applicants may serve as prison guards in maximum-security male prisons. The state argues that female guards would be at risk of sexual assault and that their presence would undermine security.

What level of scrutiny applies, and is the law likely constitutional?

Hypothetical B

A state university uses a points-based admissions system that awards 20 bonus points (out of 150 total) to applicants from underrepresented racial minority groups. A rejected white applicant challenges the system.

How should the court analyze this?

Hypothetical C

A city ordinance requires all group homes for persons with intellectual disabilities to obtain a special-use permit, while group homes for other purposes (e.g., fraternities, nursing homes for the elderly) need only a standard building permit.

What level of scrutiny applies, and is the ordinance likely constitutional?

Hypothetical D

A state law provides that children born out of wedlock may inherit from their fathers only if paternity was established by court order during the father's lifetime. Children born within marriage face no such requirement.

What level of scrutiny applies?