The Fourteenth Amendment of the United States Constitution provides that “[n]o state shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.”
- The application of this clause constitutes a control on how various classifications (not only those based on race, but also those based on other attributes) can be legitimately used by the government.
- Like due process protection, the “equal protection” applies to governmental action, but generally not to action taken by private individuals.
- The issue of equal protection may arise when the government allows people in one classification to do a thing, but denies this right to people in another classification where there is no legitimate and applicable distinction between the classifications.
- Generally speaking, equal protection is intended to have the government treat people in comparable circumstances similarly. One of its purposes is to prevent discrimination.
- Depending on the circumstances, violations of equal protection are analyzed under one of three standards of review:
- In those cases in which an ordinance or its application utilizes a classification that does not involve either “suspect classification” (e.g., race or national origin) or a “quasi-suspect” category (e.g., gender), and in those cases in which an ordinance or its application utilizes a classification that does not impair a “fundamental right” (e.g., First Amendment rights), then the “mere rationality” test is used. All that is required is that the classification used by the government must conceivably bear some rational relationship to a legitimate governmental purpose sought to be achieved.
- When an ordinance or its application involves a “suspect” classification or utilizes a classification that impairs a “fundamental right,” it will be strictly scrutinized and will be upheld only if there is a compelling interest to be achieved, and the classification is necessary to further that interest. This “strict scrutiny” test is the same as that for substantive due process when a “fundamental right” (e.g., the right to privacy) is involved.
- Under some limited classifications (e.g., gender and illegitimacy), an intermediary test is applied. This test has a higher standard than the “mere rationality” test but not one as demanding as the “strict scrutiny” test. Under this middle level test, the classification used must be “substantially related” to an “important” governmental objective.