Equal Protection: How Does It Work?
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Equal Protection: How Does It Work?


♪♪Music♪♪ We’re going to talk
now about the equal protection clause. The equal protection clause
first appears in the Constitution in the 14th
amendment, which is one of the three amendments passed
in the immediate aftermath of the Civil War. We call those the Civil War
reconstruction amendments and what the equal protection clause
says, it’s in section 1 of amendment 14 is no state shall
and I’m paraphrasing there. Here’s the quote “deny to any
person within its jurisdiction the equal protection of the
laws.” Now that’s one of those general
expressions with which it would be hard to disagree, also hard
to know exactly what that was intended to accomplish or to
whom it was intended to apply. One of the issues of current
political interest of course is the who’s a person question, we
know that includes corporations and we know because of
incorporation that means all those 1st amendment and other
rights of free speech etc. incorporate in the due process
clause which also uses person etc. That’s a topic for a
different day but we don’t really know exactly to whom it
was intended to apply of as this point of our discussion nor do
we know exactly what equal protection was meant to, to
cover. So what I want to do now is, is
give you a little feel for the evolution in thinking about how
to answer those, those two questions and then, but then
spend most of our time talking about how equal protection
analysis works now. So what I want to leave you with
is the tools to confront an equal protection problem and say
oh well let’s see, let’s just analyze that and actually come
up with some sort of resolution satisfactory at least to
yourselves if to no one else and equal protection issues are the
meat and potatoes issues for a lot of Constitutional
litigators. We hear a lot about the equal
protection clause as we do about the due process clause, which
is, I mentioned, we’re going to talk about a little bit later. So, we know that, what do we
know? We know as far as to whom it
applies that it is one of the reconstruction amendments, the
13th amendment had already been adopted, that prohibits slavery,
Abraham Lincoln himself evidently thought that that
would solve all the Civil war problems. You get rid of slavery and we’re
done, turned out that wasn’t true, all sorts of things
happened afterwards in Southern states during the process of
reconstruction that a lot of Northern legislators thought
were denying to freed slaves, fair rights of access to the
political process and judicial proceedings and that sort of
thing. The 13th amendment simply by
abolishing slavery hadn’t done, hadn’t gone far enough to
rectify what they perceived to had been the problems in large
part giving rise to the Civil war and so they pushed the
through the 14th amendment which includes this equal protection
clause, no state shall deny to any person equal protection of
the laws. So at a minimum we can surmise
that it was intended to protect the rights of African Americans
from state governments in the South during the years
immediately after the Civil war, that’s the problem-giving rise
to the language. And for a period of time it was,
it was believed by a lot of people that the equal protection
clause was a clause to protect the rights of African Americans. Supreme Court didn’t have the
opportunity to address that for a couple of decades and when
they did they actually decided no, it’s larger than that. That may have been the problem
giving rise to the equal protection clause but the
language any person is broader that that and we’re going to
apply it as written. The case that gave the court the
opportunity to do that was the 1886 case of Yiguo, Yiguo a, the
operator of a laundry in San Francisco, he was of Chinese
origin, he and a bunch of other folks were denied licenses to
build wooden laundries and people who were not Chinese were
in enormous numbers granted these licenses to build wooden
laundries and so he took his case to the Supreme Court and
said this is a violation of equal protection. We based on our national origin
are being denied equal protection of the laws. It’s a violation of the 14th
amendment, we’re being denied equal protection of the laws by
a state and the Supreme Court said yeah, fair claim and Yiguo
won. So there we see an expansion to
Chinese Americans. So race, national origin and
then it sort of expanded from there. Curiously and interestingly and
this is going to be the topic of a later talk, women didn’t grab
hold of the equal protection clause until much later. They had other clauses, womens
rights movement did that they used including the privileges
and immunities clause most especially but women came sort
of late to the equal protection game to use the equal protection
clause to protect them from discrimination on the basis of
sex or gender but other groups started using it but now it’s,
it’s apparent that the equal protection clause is available
to practically anybody. If you are a member of a group
defined by anything then you can bring an equal protection
challenge if your group has been denied something that other
groups have not been denied. I’ll give you an illustration. Let’s say you don’t see to well
anymore and you go into apply for a driver’s license and you
take the vision test and you don’t pass and your denied a
state driver’s license well what you’ve just experienced is a
potential violation of the equal protection clause because the
state is giving driver’s licenses to people who have a
certain visual acuity and denying them to people who have
a different visual acuity and you can file a Constitutional
challenge against the state for violation of your rights under
the equal protection clause. So groups of people if you’ve
got a common characteristic, you can file suit and challenge
violation, the principal is and this is a very fundamental and
core principal that all people or at least people similarly
situated should all be treated the same. This is one of our core American
values, not exclusively American but it’s a core American value,
individual rights and everybody’s equal before the law
etc. Now what do you do if you’re a court and you get one
of these claims, surely it can’t be easy for my driver’s license
person to win, I mean, really? Conversely if, if I were denied
a driver’s license because I was African American you’d think,
well that can’t be right, you know that’s not a, that’s, so
how does the court evaluate these and here’s where this
becomes complex so everyone needs to sit up straight now. The court has developed over the
years a three tiered system of analysis for evaluating equal
protection claims and the tiers are based on one of two things,
either the group that’s affected by the classification, by
classification, means you get to or you don’t get to, that’s the
classification. The group on the losing side is
defined by something and if it’s defined by something that the
court finds suspicious or suspect or historically
problematic, then it’s going to look at those cases really,
really closely. Those suspect classes include,
classes defined by race or classes defined by national
origin, if a states doing the discrimination they’ll include
classes defined by alienage like if a state discriminates against
non citizens then the courts going to look really, really
closely at that. So those are, those are our
three classes of strict scrutiny that we’re going to talk about
for close examination. If the classification or the
group that’s affected by the classification is united by a
characteristic that’s maybe not quite so troublesome
historically or that maybe more often than in the first group of
cases is relevant to differential treatment then the
court relaxes the examination a little bit but it’s still paying
somewhat close attention if it’s a classification or
characteristic that we have historically had problems with,
problems with that frequently is irrelevant and the paradigm
example there is gender, is gender. So if somebody says men can and
women can’t well maybe sometimes because there are physical
differences but you know, but not usually, you know most
things it’s hard to see why it would make any difference and so
the court will look at that a little bit more closely. I’m going to do a separate
lecture on gender and the Constitution and we’ll talk
about the history of women in the Constitution and how all
that’s played out. And then the last, the area of
least concern are, are classifications on where the,
the criteria or the element defining the class is something
that really isn’t a problem that frequently justifies
preferential treatment or we don’t really have a historical
problem with, with adverse discrimination so that would be
visual acuity for instance. Yeah so you see well and you
don’t really see well so we don’t have a history you know
and that is relevant to driver’s licenses and all sorts of other
things so, so we’re not going to pay as much attention to that. Now that’s the three tiers,
three sorts of classifications. What’s the analysis? So that’s going to depend and
the first of this, I’m going to start at the bottom and go back
up. If your classification is your
differential treatment is based on a characteristic that’s
frequently relevant and that nobody really cares so much
about, there’s no real history of discrimination based on the
characteristic then the courts going to subject it to something
called rational basis review, rational basis review and what
that means is that if you’ve got that kind of classification,
it’s ok constitutionally if the classification is rationally
related to a legitimate end of government, rationally related
to a legitimate end of government. So it’s a two part test so let’s
do my driver’s license, I come in, I’m blind, they don’t give
me a driver’s license, I say this is a equal protection
violation so the first question is, well are some people treated
differently than others? Yeah, people who don’t see very
well don’t get licenses, people who do see well do, ok and not
just well but above a certain defined point, ok is that, is
that a suspect class? No the level of review is
rational basis review, ok so is that discrimination rationally
related to the legitimate end of government? Well the state would argue and
the court would find the legitimate end of government is
safe roads, legitimate end of government and is keeping people
who don’t have a certain visual acuity off the roads, rationally
related to that, yeah, so it’s fine, it passes the equal
protection challenge. The great majority of statutes
that are passed discriminate in some way against somebody or a
lot of statutes do but there, there rational basis review
statutes. You can challenge them if you
want to but most people don’t because they recognize that this
is rationally related to a legitimate of government, I’m
not going to challenge but you could, you could. Now gender as I promise I’m
going to talk more about later but I’ll tell you what the level
of review is. You’ll be amused to know this
was established in an Oklahoman case involving the rights of, of
late teenage boys to buy beer at grocery stores. The Craig vs. Boren case, yes it was our own
President Boren who was the nominal defendant in that case
when he was the governor, but the level of review the court
came up with for classification based on sex was intermediate
scrutiny which is to say the classification is ok only if
the, the classification is substantially related to an
important end. It’s a little harder than
rational basis but a little easier than the one we’re about
to hit and at this point you may be starting to scratch your
heads and think what does that mean? Who decides what’s an important
end of government and the court, the court decides what’s
important and substantially related and isn’t this, there
isn’t a lot of room to play with these and the answer is yeah but
this is, this is the best solution the court has been able
to come up with for enforcing the statute so the last of these
categories is what we call strict scrutiny and I’m going to
talk about race and the Constitution to in a later
lecture but strict scrutiny requires that the classification
be necessary to a compelling end. You’ll also read narrowly
tailored to a compelling end. So the reason you’re doing this
has got to be really, really important classifying on the
basis of race or national origin and this has to be the only way
to get there. And I’ll tell you the only time
the Supreme Court has found that satisfied in the case of
classification based on race or national origin and these are
famous cases where the Japanese internment cases during World
War II, where people were interned on the West Coast, put
into camps, had curfews imposed against them on the basis of the
fact that they were of Japanese descent, didn’t matter if they
were US citizens or born here, if they had Japanese ancestry
then they were considered a security risk and they were
taken from their homes and put into interment camps. That got challenged in a series
of cases, the Korematsu case for instance and the Supreme Court
looked at it and said it’s a classification based on National
origin, they used slightly different terms then but the
level, we have to look at this closely, the level of review
will be eventually strict scrutiny. You can only do this if it’s
necessary to a compelling end and the end argued was safety
during the war and is, is this necessary to that, interning
Japanese Americans and the court decided yes, it is. Now was that the right decision? Doesn’t matter, for our purposes
the test was established and applied but Congress
subsequently has apologized for that and the court as well I
think came to regret Korematsu and it’s viewed, my own personal
opinion by, by everybody I know as having been a little bit
unnecessary. Note, Germans weren’t interned
and Italian Americans weren’t interned, just Japanese
Americans were interned. But that’s the level of review
that was applied and it was applied in that case
successfully for the government in virtually every other
instance strict scrutiny is fatal right? It’s very, very hard. Now the last thing I’ll mention
and then I’ll close cause we’re going to talk about these later
is, is the challenge is in equal protection cases is identifying
the classification, where is the line being drawn, identifying if
your going against the statute, your client group as deserving
of heightened scrutiny, strict scrutiny and then you apply the
test and the government has to defend on the basis of whatever
the appropriate level of review happens to be. The government of course in
defending the statute wants this to be rational basis, you want
it to be strict scrutiny and that’s the litigation fight in
equal protection cases. That’s an introduction and we’ll
continue with this topic in connection with gender and race
based classification in future lectures. Thank you. (Applause) (Music) Freedom 101
is made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit freedom.ou.edu. (Music)

7 Comments

  • justachannel

    I'm not going to agree with internment. And I won't say that appearance and ethnic and cultural differences (European v. Asian) didn't have anything to do with it. However, Japan was also the only country that attacked the United States in both its territories and the states. And, correct me if I'm wrong, the United States never faced an invasion threat from Germany or Italy–only from Japan. On the other hand, my father of German descent served in Navy. My Italian immigrant grandfather worked building LSD's (landing ship docks). His two sons served in the Army. And my mother worked where they built the bubbles for B-17 gunners. Really different treatment.

    Oh, and the internment cases weren't technically equal protection cases–or not Fourteenth Amendment equal protection cases–since they applied to federal government action.

    Last, might equal protection of federal laws be a Ninth Amendment right?

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