Your Rights Under the U.S. Constitution’s Equal Protection Clause

The Basic Protections Provided by the 14th Amendment

The United States fought a long and bitter civil war that put an end to slavery and made all Americans equal under the law. The 13th Amendment to the U.S. Constitution, passed by Congress in early 1865, made slavery illegal, except as punishment for a crime. Undaunted in defeat, though, many southern states, after rejoining the Union, enacted new laws that made former slaves second-class citizens, restricting many of their basic rights. In response, Congress passed the 14th Amendment in early 1868. The Amendment was ratified by the required number of states in July 1868 and became the law of the land.

What Does the 14th Amendment Protect?

Section 1 of the 14th Amendment provides three fundamental guarantees:

• That the states cannot enact laws that limit the “privileges or immunities” of anyone with American citizenship
• That the states must ensure that a person is afforded due process of law before losing their property, liberty, or life
• That the states cannot deny any person the equal protection of the law

This last guarantee, known as the Equal Protection Clause, has played an essential role in striking down discriminatory laws.

What Does Equal Protection Mean Within the Scope of the 14th Amendment?

When the 14th Amendment was enacted by Congress and ratified by the states, its purpose seemed straightforward—to prevent states from engaging in activities that denied rights to Black Americans or discriminated against them because of their race or color. Unfortunately, the language of the Amendment is broad, so it has often been construed in ways that seem clearly contrary to its original intent. For example, many southern states enacted laws that required Blacks to use separate facilities (such as water fountains, restrooms and railroad cars). Those states contended that they weren’t denying Blacks access, so they weren’t engaging in discrimination, because although the facilities were separate, they were “equal.”

In 1896, the U.S. Supreme Court, in Plessy v. Ferguson, sanctioned that practice, holding that facilities could be separate, provided they were equal. That doctrine governed until 1954, when the Supreme Court ruled, in Brown v. Board of Education, that separate is “inherently unequal.”

It’s important to understand that, as construed by the courts, the Equal Protection Clause protects individuals from governmental acts that have either disparate intent or disparate impact. Those acts committed for the specific purpose of treating persons differently based on race, religion, sex, etc., may be found unconstitutional because of disparate intent. Actions that may seem to treat everyone the same may also violate the 14th Amendment if they have a disparate impact. A law, for example, that bans any type of headgear at work, may seem to apply equally to everyone, but it unconstitutionally affects the rights of persons who wear something on their head for religious reasons.

How Is the Equal Protection Clause Construed and Enforced Today?

A person may generally allege violation of the Equal Protection Clause whenever a state governmental body or agency grants or allows one class of individuals to do something that another class may not, or when the government prevents one particular class of individuals from doing something. The first step in the analysis of an Equal Protection Clause claim is to determine the basis (or classification) for the disparate treatment.

The toughest test a court can apply to a law is “strict scrutiny,” which is applied to laws that discriminate based on race, national origin, and religion. The strict scrutiny test is also applied whenever a law interferes with certain fundamental rights, including free speech, free exercise of religion, freedom of assembly, the right to travel, the right to marry, or the right to privacy. Under strict scrutiny, a law will be upheld only if the court finds that it serves a compelling interest and that the unequal treatment is necessary to promote or further that interest. When a court applies strict scrutiny, the discriminatory law is almost always found to be unconstitutional. Exceptions exist where there are questions of national security or affirmative action involved.

Courts use the “rational basis” test in cases involving laws that discriminate based on disability, age, political preference, socioeconomic status, or status as a convicted felon. In such cases, the law will be upheld as constitutional if the court determines that there is a “rational basis” for the unequal treatment in order to meet a “legitimate state purpose.”

There is also a middle ground to which a court may subject an Equal Protection Clause claim. In situations where the disparate treatment or impact is based on sex, gender identity, sexual orientation, or a person’s legitimacy status at birth, federal courts typically apply intermediate or “heightened” scrutiny, which is less than strict scrutiny but more than the rational basis test. In many state courts, laws affecting people based on sex, gender identity, and sexual orientation receive strict scrutiny.

Does the Equal Protection Clause Ban All Forms of Discrimination?

No. The objective of the 14th Amendment is to require that states govern without bias or prejudice. The judicial interpretations of the 14th Amendment have recognized, however, that there are situations where treating individuals differently based on certain characteristics can have a legitimate governmental purpose or objective. For example, the Supreme Court upheld a law that punished males, but not females, for having sexual intercourse under 18 years of age. Applying intermediate scrutiny, the Court found that the law was justified because it served the important governmental interest of preventing teenage pregnancies.

Does the 14th Amendment Ban Only State Action?

The language of the 14th Amendment refers only to actions by the state. The provisions of the Equal Protection Clause also apply to actions of the federal government, pursuant to the Due Process Clause of the 5th Amendment. In addition,the Equal Protection Clause applies to forbid discrimination by private parties where the discrimination affects public accommodations, such as housing, hotels, retail stores, private schools, or interstate travel.

Summary

The Equal Protection Clause of the 14th Amendment prohibits some actions by the government and private parties that treat classes of people differently; however, it does not ban all forms of discrimination. Any state action that involves disparate treatment or disparate impact may be subjected to analysis by courts. Laws that discriminate based on race, religion, or national origin are subjected to strict scrutiny and will be struck down unless they are shown to be necessary to further a compelling government interest. Laws that discriminate based on sex, gender identity, or sexual orientation will receive either strict or intermediate scrutiny, depending on the jurisdiction. Other laws will receive “rational basis” scrutiny and will be upheld as long as there is a rational basis for the disparate treatment or impact that serves a “legitimate state purpose.”