United States Constitution

PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution

ARTICLES

Article 1

Section 1
Section 2
Section 3
Section 4
Section 5
Section 6
Section 7

Section 8

Commerce Clause
Dormant Commerce Clause
Taxing and Spending Clause
Necessary and Proper Clause
Additional Enumerated Powers

Section 1
Section 2
Section 3
Section 4

Section 1

Judicial Review
Impeachment of Federal Judges

Justiciability
Exceptions Clause

Section 1

Full Faith and Credit Clause
Privileges and Immunities Clause
Extradition Clause
Fugitive Slave Clause
New States and Other Property
Guarantee Clause

Amendment

Amendment I

Establishment
Free Exercise
Freedom of Speech
Freedom of the Press
Assembly and Petition
Freedom of Religion

Rights of Criminal Defendants
Eminent Domain

Section 1

The Question of Government Action
Birthright Citizenship
Privileges or Immunities Clause
Procedural Due Process
Substantive Due Process
Incorporation of the Bill of Rights
Equal Protection Clause

The Equal Protection Clause

Introduction to Equal Protection
Rational Basis Review
Background to Racial Discrimination

Racial Discrimination and Strict Scrutiny
Disproportionate Discriminatory Impact
Affirmative Action
Gender
Sexual Orientation
Alienage
Voting

A few final introductory points. First, it should be noted that while the Equal Protection Clause, specifically, applies to state and local governments, everything included in that clause also applies to the federal government through the 5th Amendment. Second, in addition to the Rational Basis and Strict Scrutiny tiers of review and analysis, the Court has also applied an Intermediate level (which will be addressed in the ‘Gender’ section below). Third, while these tiers are not technically outcome determinative – a law can fail Rational Basis Review and pass Strict Scrutiny – they often are exactly that. In the vast majority of cases, once the Court decides that Strict Scrutiny is most appropriate, the law will be struck down. Usually, if the Court applies Rational Basis Review, the law is upheld. Third, this tiered system of review is not unique to Equal Protection. It is used in Substantive Due Process cases, 1st Amendment cases, and throughout the Constitution. It is a regular tool used by the Court to determine constitutionality.

Finally, though terms like Rational Basis Review (and its accompanying “legitimate purpose” and “rational relation”) and Strict Scrutiny (and its accompanying “compelling purpose” and “narrowly tailored”) are often used here as if they themselves are clear standards, they are often not. The Court may mention these terms, or not, and still apply an analogous framework. Or the Court may use these exact terms, and undertake an unfamiliar analysis. As has been suggested, these tiers of review may be best thought of less as precise tiers, and more as points on a spectrum. The greater the likelihood for some inappropriate action, the more closely the Court will look to determine if anything inappropriate took place. Indeed, the very notion of tiered review did not really emerge until Carolene Products Co., and the explicit use of Strict Scrutiny did not really take place until Korematsu v. United States (1944) .

Therefore, it’s important to keep in mind that, when reading the simplified descriptions of the cases below, the Court’s actual analysis may be much more subtle (or confusing) in the text of the case itself.

In Cleburne, a city zoning commission had denied an application for a group home of mentally disabled men. The express government purpose was the allaying of the fears and concerns of the neighborhood’s other residents. Though the Court split on this particular point – the majority held that mentally disabled people were not a suspect class, and the law was therefore given Rational Basis Review. However, even though allaying fears of the neighborhood may be legitimate in its own right, the Court saw this as the government making a law simply out of animus and disdain for the mentally disabled. This was prejudice as purpose, and not legitimate. Therefore, the Court invalidated the law.

Racial Discrimination	Important Cases
The movement toward racial equality in the United States has not always been a straightforward one. Obviously, before the Civil War, when slavery was still legal in many parts of the country, African Americans were not treated with the dignity owed all people. Nowhere is this more embodied in the history of the Supreme Court than in the case of Dred Scott v. Sandford (1857). In Dred Scott, the Court examined the case of an African American who claimed that, though once a slave, he was now automatically free for having traveled into a free state with his former master. The Court, however, rejected this argument. First, the Court held that the Constitution understood black individuals to be “beings of an inferior order.” They were not entitled to the protections of the Constitution and they were not citizens. Therefore, the Court could did not have even jurisdiction over them to be able to decide the case.Still, though, the Court also went on to analyze Dred Scott’s claim itself. The Court held that were a slave to automatically become free when traveling into a free state with his master, the master’s property rights would be unconstitutionally violated. Therefore, Dred Scott was not free.Certainly, in the wake of the Civil War and with the passage of the 13th Amendment, the evil that was slavery ended. However, even with the passage of the 14th Amendment, other evils persisted. The Equal Protection Clause only accomplished so much.In Plessy v. Ferguson (1896), the Court held that Louisiana’s racially separate railroad cars did not violate the Equal Protection Clause. Though the plaintiff made the argument that such separations result in inferior services for African Americans, the Court upheld “separate but equal” as constitutionally valid.Separate but equal persisted for over 50 years, until Brown v. Board of Education (1954), when the Court finally held that separate but equal was wholly unconstitutional. This case, specifically concerning public schools but having wide application, stood for the proposition that not only may facilities actually be unequal (in which case, even before Brown, a court may have found the separation invalid), but the very notion of segregation stigmatizes and creates a false sense of inferior and superior classes.Still, despite the uneven trajectory toward racial equality and even the not always successful efforts to implement Brown‘s mandate to desegregate schools and other government entities, racial classifications by the government, especially considering the above history, are generally given Strict Scrutiny by the Court.	Dred Scott v. Sandford (1857)

Racial Discrimination

Important Cases

The movement toward racial equality in the United States has not always been a straightforward one. Obviously, before the Civil War, when slavery was still legal in many parts of the country, African Americans were not treated with the dignity owed all people. Nowhere is this more embodied in the history of the Supreme Court than in the case of Dred Scott v. Sandford (1857). In Dred Scott, the Court examined the case of an African American who claimed that, though once a slave, he was now automatically free for having traveled into a free state with his former master. The Court, however, rejected this argument. First, the Court held that the Constitution understood black individuals to be “beings of an inferior order.” They were not entitled to the protections of the Constitution and they were not citizens. Therefore, the Court could did not have even jurisdiction over them to be able to decide the case.Still, though, the Court also went on to analyze Dred Scott’s claim itself. The Court held that were a slave to automatically become free when traveling into a free state with his master, the master’s property rights would be unconstitutionally violated. Therefore, Dred Scott was not free.Certainly, in the wake of the Civil War and with the passage of the 13th Amendment, the evil that was slavery ended. However, even with the passage of the 14th Amendment, other evils persisted. The Equal Protection Clause only accomplished so much.In Plessy v. Ferguson (1896), the Court held that Louisiana’s racially separate railroad cars did not violate the Equal Protection Clause. Though the plaintiff made the argument that such separations result in inferior services for African Americans, the Court upheld “separate but equal” as constitutionally valid.Separate but equal persisted for over 50 years, until Brown v. Board of Education (1954), when the Court finally held that separate but equal was wholly unconstitutional. This case, specifically concerning public schools but having wide application, stood for the proposition that not only may facilities actually be unequal (in which case, even before Brown, a court may have found the separation invalid), but the very notion of segregation stigmatizes and creates a false sense of inferior and superior classes.Still, despite the uneven trajectory toward racial equality and even the not always successful efforts to implement Brown‘s mandate to desegregate schools and other government entities, racial classifications by the government, especially considering the above history, are generally given Strict Scrutiny by the Court.

Dred Scott v. Sandford (1857)

Racial Discrimination and Strict Scrutiny	Important Cases
As mentioned, government classifications based on race are generally given Strict Scrutiny. African Americans, and potentially other groups as well, are suspect classes and “discrete and insular minorities” that have been historical victims of prejudice and discrimination. As such, the Court will ask whether a particular classification has a compelling purpose and whether the action undertaken by the government is narrowly tailored to that purpose.An early example of the Equal Protection Clause invalidating a government classification can be found in Strauder v. West Virginia (1880). In Strauder, West Virginia passed a law prohibiting African Americans from serving on juries. The purpose given for this law was to ensure an educated and informed makeup of the jury, a purpose better protected by completely restricting potentially illiterate former slaves from participation. The Court understood African Americans to be the group for whom the 14th Amendment was specifically written, and thereby considered them akin to a suspect class, triggering a forerunner of the Strict Scrutiny analysis. Though educated and informed juries may itself be a compelling purpose, a blanket exclusion of African Americans was not a narrowly tailored way to achieve that goal. There were other ways to do so without this discriminatory action.Another landmark case involving racial classifications was Korematsu v. United States (1944). In Korematsu, an executive order was issued by President Roosevelt, and bolstered by Congress, giving military commanders the power to remove Japanese people from their homes in the United States and intern them in specially designated camps. This applied whether or not they were citizens. The government purpose given for this action was national security – as it took place during World War II. The country was at war with the Japanese and, especially after the attack on Pearl Harbor, the military feared an invasion of the West Coast (and help with that invasion from Japanese spies on U.S. soil).Here, the Court did consider the Japanese to be a suspect class; and therefore (and explicitly for the first time), the Court applied Strict Scrutiny. However, the Court decided both that the purpose of national security was compelling and that the means undertaken, the internment of the Japanese, was the most narrowly tailored way to further this particular purpose at this particular time. The internment, then, was held not to be unconstitutional.Finally, another important case in Equal Protection jurisprudence is Loving v. Virginia (1967). In Loving, a Virginia anti-miscegenation statute was challenged. These laws, on the books in other states at the time as well, forbid the intermarrying of people belonging to two different races. Virginia’s anti-miscegenation law criminalized marriage between one white person and other person from any different race, including African Americans.Overturning an earlier decision in Pace v. Alabama (1883), which found such statutes to be valid, the Court decided that anti-miscegenation laws were unconstitutional under both the Equal Protection Clause and Substantive Due Process. The Constitution did not permit “classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment.”	Strauder v. West Virginia (1880)

Racial Discrimination and Strict Scrutiny

Important Cases

As mentioned, government classifications based on race are generally given Strict Scrutiny. African Americans, and potentially other groups as well, are suspect classes and “discrete and insular minorities” that have been historical victims of prejudice and discrimination. As such, the Court will ask whether a particular classification has a compelling purpose and whether the action undertaken by the government is narrowly tailored to that purpose.An early example of the Equal Protection Clause invalidating a government classification can be found in Strauder v. West Virginia (1880). In Strauder, West Virginia passed a law prohibiting African Americans from serving on juries. The purpose given for this law was to ensure an educated and informed makeup of the jury, a purpose better protected by completely restricting potentially illiterate former slaves from participation. The Court understood African Americans to be the group for whom the 14th Amendment was specifically written, and thereby considered them akin to a suspect class, triggering a forerunner of the Strict Scrutiny analysis. Though educated and informed juries may itself be a compelling purpose, a blanket exclusion of African Americans was not a narrowly tailored way to achieve that goal. There were other ways to do so without this discriminatory action.Another landmark case involving racial classifications was Korematsu v. United States (1944). In Korematsu, an executive order was issued by President Roosevelt, and bolstered by Congress, giving military commanders the power to remove Japanese people from their homes in the United States and intern them in specially designated camps. This applied whether or not they were citizens. The government purpose given for this action was national security – as it took place during World War II. The country was at war with the Japanese and, especially after the attack on Pearl Harbor, the military feared an invasion of the West Coast (and help with that invasion from Japanese spies on U.S. soil).Here, the Court did consider the Japanese to be a suspect class; and therefore (and explicitly for the first time), the Court applied Strict Scrutiny. However, the Court decided both that the purpose of national security was compelling and that the means undertaken, the internment of the Japanese, was the most narrowly tailored way to further this particular purpose at this particular time. The internment, then, was held not to be unconstitutional.Finally, another important case in Equal Protection jurisprudence is Loving v. Virginia (1967). In Loving, a Virginia anti-miscegenation statute was challenged. These laws, on the books in other states at the time as well, forbid the intermarrying of people belonging to two different races. Virginia’s anti-miscegenation law criminalized marriage between one white person and other person from any different race, including African Americans.Overturning an earlier decision in Pace v. Alabama (1883), which found such statutes to be valid, the Court decided that anti-miscegenation laws were unconstitutional under both the Equal Protection Clause and Substantive Due Process. The Constitution did not permit “classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment.”

Strauder v. West Virginia (1880)

Disproportionate Discriminatory Impact	Important Cases
It is often the case that a government will not engage in a specifically classifying action at all, but still act in a way that potentially triggers the Equal Protection Clause. In fact, government acts that explicitly discriminate – especially in the realm of race, today – are rare. Usually, a race-related challenge to government action under the Equal Protection Clause takes the form of a “Disparate Impact” or “Disproportionate Discriminatory Impact” challenge. Here, the government body is accused of doing something that may not have been expressly for the purpose of discrimination or classification, a law that is referred to as “facially neutral. Yet, in such challenges, the plaintiff asserts that the facially neutral law still impacts one group disproportionately.However, constitutionally, a racially disproportionate impact is not sufficient to implicate the Equal Protection Clause. For a racially facially neutral law to be unconstitutional, it must both have a disproportionate discriminatory impact and be motivated by what is known as “invidiousness.” In other words, though the law may appear neutral, it must be shown that it was actually motivated by some bias or prejudice. Without invidiousness, there is no constitutional violation.By way of example, in Washington v. Davis (1976), the Court examined a government test which measured reading ability for admission into the police academy. But this racially facially neutral action – purposed with building a police force that was able to properly communicate – had a disproportionate discriminatory impact: more African Americans failed the test than did white test takers. However, the Court found there to be no underlying invidiousness with regard to this action, and the law was then upheld under Rational Basis Review.Also, in McClesky v. Kemp (1987), an inmate on death row argued that the death penalty, though racially facially neutral, as implemented had a disproportionate discriminatory impact on those accused of killing white victims. However, the Court found there to be no underlying invidiousness with regard to this action, and the death penalty was upheld under Rational Basis Review.Finally, it also worth noting here – though it is somewhat tangential – that racially facially neutral laws can be challenged when administered in a prejudicial way. The early example of Yick Wo v. Hopkins (1886) probably provides the best illustration of this point. In Yick Wo, a San Francisco administrative board, by statute, was charged with managing applications to build laundromats. The statute as written was racially racially neutral; but while the majority of San Francisco’s laundromats were Chinese-owned, none of the Chinese applicants received the necessary permits, while the vast majority of white applicants did receive the permits. Even though the law may have been initially passed without invidiousness, the administration and application of the law did show bias and prejudice. Therefore, the Court struck down even the underlying statute as an unconstitutional violation of Equal Protection.	Yick Wo v. Hopkins (1886)

Disproportionate Discriminatory Impact

Important Cases

It is often the case that a government will not engage in a specifically classifying action at all, but still act in a way that potentially triggers the Equal Protection Clause. In fact, government acts that explicitly discriminate – especially in the realm of race, today – are rare. Usually, a race-related challenge to government action under the Equal Protection Clause takes the form of a “Disparate Impact” or “Disproportionate Discriminatory Impact” challenge. Here, the government body is accused of doing something that may not have been expressly for the purpose of discrimination or classification, a law that is referred to as “facially neutral. Yet, in such challenges, the plaintiff asserts that the facially neutral law still impacts one group disproportionately.However, constitutionally, a racially disproportionate impact is not sufficient to implicate the Equal Protection Clause. For a racially facially neutral law to be unconstitutional, it must both have a disproportionate discriminatory impact and be motivated by what is known as “invidiousness.” In other words, though the law may appear neutral, it must be shown that it was actually motivated by some bias or prejudice. Without invidiousness, there is no constitutional violation.By way of example, in Washington v. Davis (1976), the Court examined a government test which measured reading ability for admission into the police academy. But this racially facially neutral action – purposed with building a police force that was able to properly communicate – had a disproportionate discriminatory impact: more African Americans failed the test than did white test takers. However, the Court found there to be no underlying invidiousness with regard to this action, and the law was then upheld under Rational Basis Review.Also, in McClesky v. Kemp (1987), an inmate on death row argued that the death penalty, though racially facially neutral, as implemented had a disproportionate discriminatory impact on those accused of killing white victims. However, the Court found there to be no underlying invidiousness with regard to this action, and the death penalty was upheld under Rational Basis Review.Finally, it also worth noting here – though it is somewhat tangential – that racially facially neutral laws can be challenged when administered in a prejudicial way. The early example of Yick Wo v. Hopkins (1886) probably provides the best illustration of this point. In Yick Wo, a San Francisco administrative board, by statute, was charged with managing applications to build laundromats. The statute as written was racially racially neutral; but while the majority of San Francisco’s laundromats were Chinese-owned, none of the Chinese applicants received the necessary permits, while the vast majority of white applicants did receive the permits. Even though the law may have been initially passed without invidiousness, the administration and application of the law did show bias and prejudice. Therefore, the Court struck down even the underlying statute as an unconstitutional violation of Equal Protection.

Yick Wo v. Hopkins (1886)

Affirmative Action	Important Cases
Like government actions burdening suspect classes, government actions benefiting suspect classes are also given Strict Scrutiny. The most obvious method with which government (and private) entities benefit suspect classes are through programs known collectively as “affirmative action.” But affirmative action is not necessarily one type of program or action. Many different types of such programs have taken shape in various contexts. While some have been upheld as constitutional, others have been invalidated under the Equal Protection Clause.For example, in City of Richmond v. J.A. Croson Co. (1989), Richmond compelled general contractors in the city to hire at least 30% minority subcontractors for whatever work was needed. The purpose given for this requirement was remedying past discrimination. The plaintiffs in this case claimed what has become colloquially known as ‘reverse discrimination,’ where the majority group is unfairly burdened by a benefit specifically conferred on a suspect class. Even though, obviously, white subcontractors are not a suspect class, because this law was discriminatory and certainly not racially neutral, it was given Strict Scrutiny. During the case, the city produced insufficient evidence to suggest that it was remedying discrimination in the then-construction industry. Instead, truly, all the city was trying to accomplish was remedying past discrimination by awarding minority subcontractors at least 30% of the subcontracting business. The Court held that remedying past discrimination alone was not a compelling purpose under the Strict Scrutiny analysis. Nor was the city’s discriminatory approach to dealing with this issue narrowly tailored: the city could have undertaken a less- or non-discriminatory action. Thus, the law was invalidated.While Croson is a perfectly typical example of unconstitutional affirmative action, affirmative action is perhaps most often debated in the context of schools and education.The foundational case dealing with affirmative action in schools is Regents of the University of California v. Bakke (1978). In Bakke, the Court examined an affirmative action program at the U.C. Davis Medical School. In a fractured decision, producing no fewer than seven opinions (for nine Justices), the majority held that the program used by the school for admission was unconstitutional. According to the ruling in Bakke, while a system of affirmative action that considered the backgrounds of the applicants, including race, as another potential positive factor for admission would have been valid, the quota program in place at U.C. Davis, where seats were specifically set aside for minority applicants was unconstitutional. This type of program automatically meant that qualified applicants from groups not belonging to the benefited group would be denied admission solely on the basis of their race.Bakke, however, was not the end of the line of cases involving university admissions affirmative programs. In 2003, this topic was again revisited in a pair of rulings both involving the admissions process at the University of Michigan.In Grutter v. Bollinger (2003), the Court examined the admissions policy of the University of Michigan law school which, similar to the system recommended by the Court in Bakke, the school used the backgrounds of the applicants, including race, as positive factors for admission. However, in Gratz v. Bollinger (2003), the Court invalidated the admissions policy of the University of Michigan undergraduate school which, more akin to the unconstitutional approach of U.C. Davis in Bakke, the school automatically allotted automatic bonus points to students of particular races. This, then, was considered by the Court to not be sufficiently narrowly tailored (as it naturally applied Strict Scrutiny) and thus unconstitutional.	Regents of the University of California v. Bakke (1978)

Affirmative Action

Important Cases

Like government actions burdening suspect classes, government actions benefiting suspect classes are also given Strict Scrutiny. The most obvious method with which government (and private) entities benefit suspect classes are through programs known collectively as “affirmative action.” But affirmative action is not necessarily one type of program or action. Many different types of such programs have taken shape in various contexts. While some have been upheld as constitutional, others have been invalidated under the Equal Protection Clause.For example, in City of Richmond v. J.A. Croson Co. (1989), Richmond compelled general contractors in the city to hire at least 30% minority subcontractors for whatever work was needed. The purpose given for this requirement was remedying past discrimination. The plaintiffs in this case claimed what has become colloquially known as ‘reverse discrimination,’ where the majority group is unfairly burdened by a benefit specifically conferred on a suspect class. Even though, obviously, white subcontractors are not a suspect class, because this law was discriminatory and certainly not racially neutral, it was given Strict Scrutiny. During the case, the city produced insufficient evidence to suggest that it was remedying discrimination in the then-construction industry. Instead, truly, all the city was trying to accomplish was remedying past discrimination by awarding minority subcontractors at least 30% of the subcontracting business. The Court held that remedying past discrimination alone was not a compelling purpose under the Strict Scrutiny analysis. Nor was the city’s discriminatory approach to dealing with this issue narrowly tailored: the city could have undertaken a less- or non-discriminatory action. Thus, the law was invalidated.While Croson is a perfectly typical example of unconstitutional affirmative action, affirmative action is perhaps most often debated in the context of schools and education.The foundational case dealing with affirmative action in schools is Regents of the University of California v. Bakke (1978). In Bakke, the Court examined an affirmative action program at the U.C. Davis Medical School. In a fractured decision, producing no fewer than seven opinions (for nine Justices), the majority held that the program used by the school for admission was unconstitutional. According to the ruling in Bakke, while a system of affirmative action that considered the backgrounds of the applicants, including race, as another potential positive factor for admission would have been valid, the quota program in place at U.C. Davis, where seats were specifically set aside for minority applicants was unconstitutional. This type of program automatically meant that qualified applicants from groups not belonging to the benefited group would be denied admission solely on the basis of their race.Bakke, however, was not the end of the line of cases involving university admissions affirmative programs. In 2003, this topic was again revisited in a pair of rulings both involving the admissions process at the University of Michigan.In Grutter v. Bollinger (2003), the Court examined the admissions policy of the University of Michigan law school which, similar to the system recommended by the Court in Bakke, the school used the backgrounds of the applicants, including race, as positive factors for admission. However, in Gratz v. Bollinger (2003), the Court invalidated the admissions policy of the University of Michigan undergraduate school which, more akin to the unconstitutional approach of U.C. Davis in Bakke, the school automatically allotted automatic bonus points to students of particular races. This, then, was considered by the Court to not be sufficiently narrowly tailored (as it naturally applied Strict Scrutiny) and thus unconstitutional.

Regents of the University of California v. Bakke (1978)

City of Richmond v. J.A. Croson Co. (1989)

Gender	Important Cases
Somewhat, though not completely, uniquely, classifications based on gender are given what is known as “Intermediate Scrutiny.” Under this analysis, the Court looks to see whether the government action that classifies based on gender does so for an important government purpose, and whether the action taken to further that purpose is substantially related to it.For example, in Craig v. Boren (1976), the Court examined an Oklahoma statute that made the sale of light-alcohol beer illegal to men under under the age of 21, but only illegal to women under the age of 18. Here, the Court found no important government purpose behind this particular classification. The government action thus failed Intermediate Scrutiny and was unconstitutional.Additionally, in United States v. Virginia (1996), the Court examined the male-only admissions policy of the Virginia Military Institute, a public university. In response to an earlier lawsuit, the school had actually established a women’s branch with a much less physically intense program. But Justice Ginsburg, writing for the majority, analogized this action to when the University of Texas created a separate law school for African American applicants that was anything but equal. Though VMI argued that by opening its doors to both men and women, it would have to radically change the nature of the school, Justice Ginsburg rejected this charge as illusory. The school could not deny admission to women “simply because they are women.” As Justice Ginsburg strongly stated, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.”	Craig v. Boren (1976)

Gender

Important Cases

Somewhat, though not completely, uniquely, classifications based on gender are given what is known as “Intermediate Scrutiny.” Under this analysis, the Court looks to see whether the government action that classifies based on gender does so for an important government purpose, and whether the action taken to further that purpose is substantially related to it.For example, in Craig v. Boren (1976), the Court examined an Oklahoma statute that made the sale of light-alcohol beer illegal to men under under the age of 21, but only illegal to women under the age of 18. Here, the Court found no important government purpose behind this particular classification. The government action thus failed Intermediate Scrutiny and was unconstitutional.Additionally, in United States v. Virginia (1996), the Court examined the male-only admissions policy of the Virginia Military Institute, a public university. In response to an earlier lawsuit, the school had actually established a women’s branch with a much less physically intense program. But Justice Ginsburg, writing for the majority, analogized this action to when the University of Texas created a separate law school for African American applicants that was anything but equal. Though VMI argued that by opening its doors to both men and women, it would have to radically change the nature of the school, Justice Ginsburg rejected this charge as illusory. The school could not deny admission to women “simply because they are women.” As Justice Ginsburg strongly stated, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.”

Craig v. Boren (1976)

Sexual Orientation	Important Cases
Unlike government classifications which distinguish groups on the basis of race (these are get Strict Scrutiny) and government classifications which distinguish groups on the basis of gender (these get Intermediate Review), government classifications which distinguish on the basis of sexual orientation have been given Rational Basis Review by the Court.For example, in Romer v. Evans (1996), the Court examined an amendment to the Colorado Constitution. Through a state-wide referendum, Colorado added a provision in its constitution that prohibited anti-discrimination protections otherwise applied broadly, from being applicable to discrimination on the basis of sexual orientation. But though the Court did not view those with sexual preferences different from the majority as suspect classes – and thus applied Rational Basis Review – the Court did find that the amendment was grounded in animus and prejudice. Bias alone was not a legitimate purpose, even under Rational Basis Review. In other words, the Court applied Rational Basis Review “with Bite” (see Substantive Due Process) and invalidated the action.Also see the discussion on Bowers v. Hardwick (1986) and Lawrence v. Texas (2003) in Substantive Due Process.	Bowers v. Hardwick (1986)

Sexual Orientation

Important Cases

Unlike government classifications which distinguish groups on the basis of race (these are get Strict Scrutiny) and government classifications which distinguish groups on the basis of gender (these get Intermediate Review), government classifications which distinguish on the basis of sexual orientation have been given Rational Basis Review by the Court.For example, in Romer v. Evans (1996), the Court examined an amendment to the Colorado Constitution. Through a state-wide referendum, Colorado added a provision in its constitution that prohibited anti-discrimination protections otherwise applied broadly, from being applicable to discrimination on the basis of sexual orientation. But though the Court did not view those with sexual preferences different from the majority as suspect classes – and thus applied Rational Basis Review – the Court did find that the amendment was grounded in animus and prejudice. Bias alone was not a legitimate purpose, even under Rational Basis Review. In other words, the Court applied Rational Basis Review “with Bite” (see Substantive Due Process) and invalidated the action.Also see the discussion on Bowers v. Hardwick (1986) and Lawrence v. Texas (2003) in Substantive Due Process.

Bowers v. Hardwick (1986)

Alienage	Important Cases
The issue of whether legal aliens (foreigners who are legally permitted to live and/or work in the United States but, for whatever reason are not citizens) are a suspect class is a unique one, subject to its own analysis based on the case of Sugarman v. Dougall (1973). But either way, grounding this issue is the fact that the 14th Amendment (Section 1) itself does not discriminate between citizens and non-citizens. It guarantees that states are not to “deny to any person within its jurisdiction the equal protection of the laws.”In Sugarman, the Court examined a N.Y. statute that prohibited aliens from obtaining any and all civil service jobs. The Court, then, essentially set up the following framework.Had the government action (here, the N.Y. statute) been federal, the Court would have applied the more deferential Rational Basis Review. Even though in the vast majority of cases, the protections of the 14th Amendment (Section 1) apply equally to the federal government through the 5th Amendment, Article I, Section 8 specifically grants Congress the power “To establish a uniform rule of naturalization.” This has been understood by the Court to give Congress and the federal government greater authority in the realm of immigration and laws dealing with aliens in general.The law in question in Sugarman, however, was a state action. In this context, the Court did decide that aliens are a suspect class. Meaning, they are a “discrete and insular minority,” to borrow the phrase from Carolene Products (see above “Introduction”). Therefore, generally, blanket discrimination such as was the case in Sugarman should be – and was – given Strict Scrutiny. The law was held by the Court to be unconstitutional.The Court also noted, however, that in some instances there could be a valid classification of legal aliens that was compellingly purposed enough to pass Strict Scrutiny. If the jobs in question are what has been called “sovereign function” jobs, in other words, the job involves the formulation or execution of broad public policy initiatives or the like, the state may have a compelling reason to exclude aliens from the position. For these types of classifications, only Rational Basis Review is applied. Still, in Sugarman, N.Y.’s law was significantly broader that this; and was thus invalidated.	Sugarman v. Dougall (1973)

Alienage

Important Cases

The issue of whether legal aliens (foreigners who are legally permitted to live and/or work in the United States but, for whatever reason are not citizens) are a suspect class is a unique one, subject to its own analysis based on the case of Sugarman v. Dougall (1973). But either way, grounding this issue is the fact that the 14th Amendment (Section 1) itself does not discriminate between citizens and non-citizens. It guarantees that states are not to “deny to any person within its jurisdiction the equal protection of the laws.”In Sugarman, the Court examined a N.Y. statute that prohibited aliens from obtaining any and all civil service jobs. The Court, then, essentially set up the following framework.Had the government action (here, the N.Y. statute) been federal, the Court would have applied the more deferential Rational Basis Review. Even though in the vast majority of cases, the protections of the 14th Amendment (Section 1) apply equally to the federal government through the 5th Amendment, Article I, Section 8 specifically grants Congress the power “To establish a uniform rule of naturalization.” This has been understood by the Court to give Congress and the federal government greater authority in the realm of immigration and laws dealing with aliens in general.The law in question in Sugarman, however, was a state action. In this context, the Court did decide that aliens are a suspect class. Meaning, they are a “discrete and insular minority,” to borrow the phrase from Carolene Products (see above “Introduction”). Therefore, generally, blanket discrimination such as was the case in Sugarman should be – and was – given Strict Scrutiny. The law was held by the Court to be unconstitutional.The Court also noted, however, that in some instances there could be a valid classification of legal aliens that was compellingly purposed enough to pass Strict Scrutiny. If the jobs in question are what has been called “sovereign function” jobs, in other words, the job involves the formulation or execution of broad public policy initiatives or the like, the state may have a compelling reason to exclude aliens from the position. For these types of classifications, only Rational Basis Review is applied. Still, in Sugarman, N.Y.’s law was significantly broader that this; and was thus invalidated.

Sugarman v. Dougall (1973)

Voting	Important Cases
The constitutional protection of voting is grounded in several provisions. Within the 14th Amendment, an implied fundamental right to vote has been somewhat established through Substantive Due Process. However, in an Equal Protection context, another voting-relating concept has emerged, so called “one person, one vote.” This concept means that within a given state or jurisdiction, one person’s vote should be roughly equal to another person’s vote. When a state’s district lines have been set up in a way to make certain area’s votes less influential than others, this is called a “gerry-mander”.Originally, the Court refused to become involved in cases involving legislative re-districting. The re-drawing of district lines always involves a heavy element of partisan politics, and the Court considered it a “political question” which the Court would not interfere with. This stance was taken in the case of Colegrove v. Green, a 1946 decision regarding re-districting in Illinois. Illinois had not re-drawn its district lines in over 60 years, during which the population within the state had shifted dramatically. This resulted in districts ranging in population size from roughly 100,000 to others over 900,000. Since each district had its own representatives, this meant voters in these smaller counties had much more powerful votes regarding their representation: in the example above, 9 times the power of a voter in the larger county. The Court refused to decide the question, stating that redistricting represents a “political thicket” that “Courts ought not to enter…” Justice Black wrote a dissent in which he argued that this unequal weight of voting power represented a violation of the Equal Protection Clause.In Baker v. Carr (1962), the Court held that re-districting of state legislative districts was a justiciable issue rather than a political question. The decision effectively rendered the decision in Colegrove unimportant. Colegrove had focused on Article I, Section 5, whereas Brennan’s plurality opinion in Colegrove focused on an Equal Protection analysis. Similarly to Colegrove, the state had not redrawn the lines of the voting districts – what’s known as “redistricting” – in half a century. As the populations of the districts changed over the years, some districts had more than triple – in one case more than ten times – the amount of people represented than other districts. This ruling was mirrored only 2 years later in Reynolds v. Sims (1964), another redistricting case (this time in Alabama) which codified the “one person, one vote” rule for state enate districts. The Court simultaneously decided Wesberry v. Sanders, which applied this rule to Congressional districts.Bush v. Gore (2000), the controversial case in which the Supreme Court decided to stop a Florida voting recount during the 2000 presidential election, was also decided on Equal Protection grounds. Earlier, the Florida Supreme Court had permitted a recount to occur. But the U.S. Supreme Court held that Florida’s statutory time limits for deciding on a winner of the election meant that such a recount would be rushed and standardless. Without a uniformly and fairly implemented recount, certain votes in certain counties would have possibly been given more weight than other votes in other counties. As a violation of the “one person, one vote” standard requiring by the Equal Protection Clause, this was unconstitutional.	Colegrove v. Green (1946)

Voting

Important Cases

The constitutional protection of voting is grounded in several provisions. Within the 14th Amendment, an implied fundamental right to vote has been somewhat established through Substantive Due Process. However, in an Equal Protection context, another voting-relating concept has emerged, so called “one person, one vote.” This concept means that within a given state or jurisdiction, one person’s vote should be roughly equal to another person’s vote. When a state’s district lines have been set up in a way to make certain area’s votes less influential than others, this is called a “gerry-mander”.Originally, the Court refused to become involved in cases involving legislative re-districting. The re-drawing of district lines always involves a heavy element of partisan politics, and the Court considered it a “political question” which the Court would not interfere with. This stance was taken in the case of Colegrove v. Green, a 1946 decision regarding re-districting in Illinois. Illinois had not re-drawn its district lines in over 60 years, during which the population within the state had shifted dramatically. This resulted in districts ranging in population size from roughly 100,000 to others over 900,000. Since each district had its own representatives, this meant voters in these smaller counties had much more powerful votes regarding their representation: in the example above, 9 times the power of a voter in the larger county. The Court refused to decide the question, stating that redistricting represents a “political thicket” that “Courts ought not to enter…” Justice Black wrote a dissent in which he argued that this unequal weight of voting power represented a violation of the Equal Protection Clause.In Baker v. Carr (1962), the Court held that re-districting of state legislative districts was a justiciable issue rather than a political question. The decision effectively rendered the decision in Colegrove unimportant. Colegrove had focused on Article I, Section 5, whereas Brennan’s plurality opinion in Colegrove focused on an Equal Protection analysis. Similarly to Colegrove, the state had not redrawn the lines of the voting districts – what’s known as “redistricting” – in half a century. As the populations of the districts changed over the years, some districts had more than triple – in one case more than ten times – the amount of people represented than other districts. This ruling was mirrored only 2 years later in Reynolds v. Sims (1964), another redistricting case (this time in Alabama) which codified the “one person, one vote” rule for state enate districts. The Court simultaneously decided Wesberry v. Sanders, which applied this rule to Congressional districts.Bush v. Gore (2000), the controversial case in which the Supreme Court decided to stop a Florida voting recount during the 2000 presidential election, was also decided on Equal Protection grounds. Earlier, the Florida Supreme Court had permitted a recount to occur. But the U.S. Supreme Court held that Florida’s statutory time limits for deciding on a winner of the election meant that such a recount would be rushed and standardless. Without a uniformly and fairly implemented recount, certain votes in certain counties would have possibly been given more weight than other votes in other counties. As a violation of the “one person, one vote” standard requiring by the Equal Protection Clause, this was unconstitutional.

Colegrove v. Green (1946)