Equal Protection

MBEMax wiki article — paired with the Constitutional Law question set on mbemax.com.

One-line summary

When government classifies persons, the Equal Protection Clause of the Fourteenth Amendment (and, for the federal government, equal protection component of the Fifth Amendment Due Process Clause) requires a level of justification that depends on the classification: strict scrutiny for suspect classifications and fundamental rights, intermediate scrutiny for quasi-suspect, and rational basis for everything else.

Mnemonic

S-I-R — Strict, Intermediate, Rational.

Picture three sirs knighted by scrutiny level; each tier has different armor strength.

Levels of scrutiny

Strict scrutiny

• Triggers: race, ethnicity, national origin, alienage by a state (with exceptions), fundamental rights (voting, privacy, interstate travel).
• Test: law is necessary to achieve a compelling government interest AND narrowly tailored / least restrictive means.
• Burden: on the government.
• Practice: almost always fatal, except certain affirmative-action frameworks (but see Students for Fair Admissions reshaping).

Intermediate scrutiny

• Triggers: gender, non-marital children (illegitimacy), undocumented children's public education (Plyler).
• Test: law is substantially related to an important government interest; for gender, the government must show an "exceedingly persuasive justification" (VMI).
• Burden: on the government.

Rational-basis review

• Triggers: everything else — economic, age, wealth, disability, most classifications.
• Test: rationally related to a legitimate government interest.
• Burden: on the challenger.
• Practice: extremely deferential; but "rational basis with bite" has occasionally struck laws motivated by animus (Romer, Cleburne, Moreno).

Equal protection analysis

1. Who classified whom? State action required.
2. Classification on the face or in administration? Facial classification: scrutiny triggered directly. Facially neutral + discriminatory effect: plaintiff must also show discriminatory purpose to trigger heightened scrutiny (Washington v. Davis, Arlington Heights).
3. What classification? Identify the group lines drawn.
4. Apply appropriate tier.
5. Apply the tier's test.

NCBE loves to test

• Purpose + effect rule. Facially neutral laws with disparate impact get rational basis only, unless intentional discrimination is shown.
• Affirmative action. Any racial classification triggers strict scrutiny (Adarand). Narrow tailoring emphasis after Students for Fair Admissions (2023).
• Gender — exceedingly persuasive justification. Overbroad generalizations about sexes invalid (VMI). Gender-based classifications benefiting women sometimes uphold if remedial.
• Alienage — federal vs. state. Federal classifications → rational basis; state → strict scrutiny, with political-function exception (police, teachers, voters).
• Fundamental-rights analysis. When a law burdens a fundamental right differently across groups, apply strict scrutiny (voting, marriage, travel).
• Animus. Even under rational-basis, a law reflecting bare animus toward a politically unpopular group fails (Romer, Moreno).
• Religion. Classifications based on religion trigger strict scrutiny (though more often analyzed under Free Exercise/Establishment).

Fast hypos

Hypo 1. State law reserves 10% of public-works contracts for minority-owned firms. Racial classification → strict scrutiny; narrowly tailored + compelling interest required; hard to sustain.

Hypo 2. State law excludes women from state military academy. Intermediate scrutiny "exceedingly persuasive" standard — law fails (United States v. Virginia).

Hypo 3. City zoning ordinance bars group homes for persons with mental disabilities from a residential area. Rational-basis normally; but animus-based exclusions invalidated in *Cleburne.*

Hypo 4. State restricts welfare to residents who have lived in the state at least one year. Burdens fundamental right of interstate travel → strict scrutiny → invalid (Shapiro v. Thompson).

Case anchors

• Korematsu v. United States, 323 U.S. 214 (1944) — strict scrutiny formalized (widely repudiated in reasoning but remembered for the test).
• Brown v. Board of Education, 347 U.S. 483 (1954) — racial segregation in public schools unconstitutional.
• Loving v. Virginia, 388 U.S. 1 (1967) — anti-miscegenation laws invalid under strict scrutiny.
• Craig v. Boren, 429 U.S. 190 (1976) — intermediate scrutiny for gender classifications.
• United States v. Virginia, 518 U.S. 515 (1996) — "exceedingly persuasive justification" standard (VMI).
• Romer v. Evans, 517 U.S. 620 (1996) — animus-based law fails rational basis.
• Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) — rational-basis with bite.
• Washington v. Davis, 426 U.S. 229 (1976) — discriminatory purpose needed for heightened scrutiny on facially neutral laws.
• Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) — reshaped race-conscious admissions analysis.

See also

• Freedom of Speech
• First Amendment — Speech
• Commerce Clause
• Takings

Sources

U.S. Const. amend. V, XIV; Korematsu v. United States, 323 U.S. 214 (1944); Brown v. Board of Education, 347 U.S. 483 (1954); Loving v. Virginia, 388 U.S. 1 (1967); Craig v. Boren, 429 U.S. 190 (1976); United States v. Virginia, 518 U.S. 515 (1996); Romer v. Evans, 517 U.S. 620 (1996); Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); Washington v. Davis, 426 U.S. 229 (1976); Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).