3.1 Assigned Videos- Suspect Classification and Levels of Scrutiny

When can the government discriminate?

Equal Protection Clause: No State Shall... deny to any person within its jurisdiction the equal protection of the laws.  This was included by the Framers to guarantee the equality of protection of the laws given to blacks and whites.  Equality with respect to civil rights meant equal status in the legal relations of the private economy, coupled with the right to enforce that equal status.  Equality with respect to political rights was more controversial at the at the outset, with many supporters of equal civil rights opposed to equal voting rights for African Americans.  This discrepancy was resolved by the passage of the 15th Amendment.

            Equal protection laws can be described in two ways. First, the Court distinguishes between statutes that themselves utilize racial or other 'suspect" classifications, and statutes that though state in non-racial terms, nonetheless have a "disparate impact" on racial minorities.  If the statutes use racial terms, they must survive strict scrutiny.  The use of racial terms means that the legislature must be trying to promote extremely important social goals and the establishment of racial categories is essential if that goal is to be met. If this is not the objective, then the statutes have created suspect classes.  If the statute does not name race classification yet its intent is still to deliver a disparate impact upon minorities, then strict scrutiny will apply.  If the statute creates a disparate impact upon minorities but it is as a secondary effect, not the primary intent of the law, then strict scrutiny is not automatically triggered.

Suspect Classification: The Constitution only prohibits discrimination that is invidious, arbitrary, or irrational.  The validity of the government action depends largely on the criterion on which the discrimination is based. There is ONE class of people, called people.   All other classifications are suspect.  The Court has declared that Race and Religion are suspect classes, thus any law that discriminates upon these classes will be deemed unconstitutional.  A law that creates a class, the waiting room is for "Whites Only" creates a class.  Only the members of this group can use the room. The Court has yet to elevate gender to the level of suspect classification.

Warning... you may find this content offensive as states CAN legally discriminate groups in category B or C with only an IMPORTANT reason. Gender and Sexual Orientation are not protected classes

According to Due Process, the State CAN discriminate against an individuals rights IF it has the proper reason.

Below are the levels of "Scrutiny" required in a court of law.  The level of scrutiny is triggered by the type of right that is being impaired.

Strict Scrutiny- The government must have a COMPELLING reason (need) to discriminate. This is a very high bar for the government to prove. 

Strict Scrutiny: This is triggered when a law discriminates against a class that has fallen under suspect classification or is infringing upon a fundamental right.  Under strict scrutiny, the burden of proof is upon the government to prove that the statute that is discriminatory seeks to achieve a compelling government interest, that which is far greater than an individual's rights.  Very few laws pass the Strict Scrutiny test.

Intermediate Scrutiny- The government need only provide an IMPORTANT reason to discriminate.

Intermediate or Heightened Scrutiny or Quasi-Suspect-Classification: This level of scrutiny requires that the government’s intent is only substantially related to an important government interest.  This level would regulate social and economic classifications as well as statutes based upon age, sexual orientation, and physical or mental handicaps.

Minimum or Rational Basis Scrutiny-The government need only provide an LEGITIMATE reason to discriminate.

Rational Basis Test: The burden of proof is upon the individual attaching the law to sustain that the law is discriminatory.  The justification of the discrimination can advance a social need without discriminating against individuals.

Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis

1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.):
A. Suspect Classifications:
1. Race
2. National Origin
3. Religion (either under EP or Establishment Clause analysis)
4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).

B. Classifications Burdening Fundamental Rights
1. Denial or Dilution of the Vote
2. Interstate Migration
3. Access to the Courts
4. Other Rights Recognized as Fundamental

2.  MIDDLE-TIER (Intermediate) SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.):

Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy

3.  MINIMUM (OR RATIONAL BASIS) SCRUTINY (The government need only show that the challenged classification is rationally related to serving a legitimate state interest.)
Minimum scrutiny applies to all classifications other than those listed above, although some Supreme Court cases suggest a slightly closer scrutiny ("a second-order rational basis test") involving some weighing of the state's interest may be applied in cases, for example, involving classifications that disadvantage mentally retarded people, homosexuals, or innocent children of illegal aliens. 

Levels of Legal Scrutiny Links to an external site.