The Fourteenth Amendment guarantees that "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws." Added to the Constitution in 1868, this "equal protection clause" was aimed primarily at protecting the recently freed slaves against southern governments that had stripped the freedmen of their political and legal rights. The courts, however, have interpreted this clause, with its more inclusive reference to "any person," as providing a basic protection for all persons, not just African Americans.
In order to honor both the primary intent of the amendment, and its more inclusive language, the courts have developed a tiered approach to its application. Laws employing racial classifications (i.e. laws that treat white and black people differently) are considered inherently suspect and subject to "strict scrutiny" by the courts. Laws that incorporate other forms of classifications, such as age or income level, are subject to a lower standard; states must prove only that the use of these classifications is reasonable. In recent decades, the Court introduced an "intermediate" standard for assessing laws incorporating gender classifications. Laws that treat men and women differently must serve "important governmental objectives" and states must prove that the dissimilar treatment of men and women is "substantially related to achievement of those objectives."1
Equality is one of America's most fundamental principles. But before 1868, nothing close to this word or concept was contained in the Constitution. We have come to rely on the courts to ensure that we are treated equally. But before 1868, there was nothing in the Constitution upon which the courts could draw to protect our claims.The ratification of the Fourteenth Amendment in 1868, with its guarantee that "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws," made "equality" a constitutional principle. And it provided the federal government, and the federal courts in particular, with the constitutional tool needed to ensure that Americans were treated equally.
But the framing of this amendment placed severe limitations on the federal government in pursuing and ensuring equality. First, it empowered the government to act only to protect persons against unequal treatment by the states; it provided no basis for intervention in acts of private discrimination. Second, while the amendment extended its protection to "any person," its primary purpose was to protect the recently freed slaves against abusive southern state governments.
The first limitation has proven a particularly tough obstacle for the courts; a great of deal of private discrimination remains beyond the authority of the courts to address. But the courts have developed a more effective strategy for addressing the second limitation imposed by the Fourteenth Amendment. Operating from the premise that, in addition to African Americans, others—the elderly, immigrants, women, gays and lesbians—are entitled to and need legal protection, the courts have developed a tiered approach to enforcement of the equal protection clause. Within this tiered approach, different standards are used to evaluate different types of discrimination.
This tiered approach is complex, and it has plenty of critics. Many argue that there is something fundamentally wrong about an "unequal" application of the equal protection clause. But others argue that American history and society are complex, and they require a complex approach to equality. Moreover, defenders of the court insist that this tiered approach is the only way to reconcile the Fourteenth Amendment's inclusive language with the amendment's primary purpose of protecting the recently freed slaves.
Which side is correct? Read on and decide for yourself.