- Equal protection does not require government to treat all people exactly the same; laws can draw legitimate distinctions between different groups of people
- Basic review (Lindsley test): Are classifications in the law reasonable and not arbitrary?
- Intermediate review applied to classifications such as gender: Are classifications in the law "substantially related to the achievement" of "important government objectives"?
- Heightened review applied to "suspect" classifications such as race: Classifications in the law are usually inappropriate
Just as the federal government can only ensure under the Fourteenth Amendment that the states, their employees, and their agents treat people equally, the federal government can only extend its most rigorous protection to some people. In a limited sense, the equal protection clause protects all people. (Remember, the Fourteenth Amendment uses the phrase "any person.") But in interpreting the Fourteenth Amendment the courts have kept in mind the context and specific objectives surrounding its ratification. Proposed shortly after the Civil War, the amendment was prompted by northern recognition that southern states were reducing the recently freed slaves to second-class citizens. Freedmen were shut out of the political process and reduced to a slavery-like status by local vagrancy laws. To redress these injustices, the Fourteenth Amendment was proposed to ensure that the rights of freedmen were protected.
Protecting the freedmen from southern violations was clearly the intent, but when drafting the amendment members of Congress employed more inclusive language. As a result, the Fourteenth Amendment has been interpreted to convey a somewhat two-tiered governmental responsibility. Since the amendment refers to "any person" and not just freedmen, the courts have interpreted the Fourteenth Amendment to offer fundamental protection to all persons. But recalling the more specific objectives surrounding the amendment's ratification, the courts have held that the laws impacting the rights of certain persons must be scrutinized more closely.
What this means in practice is that when persons complain that some state laws treats them unfairly, the courts apply different tests in considering their case. For starters, the courts begin with the understanding that states can legitimately draw distinctions between people when making laws. Equal protection does not mean that everyone must be treated exactly the same. A twelve-year old need not be provided the same right to drink alcohol granted to an adult; a sixty-year old does not have the same right to a public education possessed by a child. The basic question asked by the courts in evaluating state actions like these is whether the different treatment imposed by the law is reasonable. Known as the Lindsley test, the question asked is whether the classifications drawn are reasonable and not arbitrary.
But when the courts consider questions of unequal treatment involving certain categories of persons, they apply a more rigorous examination of the law in question. The Lindsley test's "restrained review" of a particular government action is replaced by a heightened or "active review" of the laws and their effects upon specific populations. For example, consistent with the original purpose of the Fourteenth Amendment, all laws incorporating racial classifications are subject to "strict scrutiny." Race is considered a "suspect" class which means that any law employing racial classifications are considered suspicious by the courts.
If this was all there was to it, the legal application of the equal protection clause might be relatively simple. But over the past fifty years, the Supreme Court has been somewhat receptive to arguments that other categories of people also deserve more rigorous judicial protection. For example, on occasion the Court has held that "alienage" is a suspect class and, consequently, laws that treat immigrants or non-citizens differently require strict scrutiny. Using this heightened review, the Court has struck down laws that denied aliens welfare assistance, declared aliens ineligible for civil service exams, and forbade them from practicing the law. To further complicate things, in recent decades the Court has created an "intermediate" standard of review. First established in cases involving gender discrimination, this intermediate standard asks not just if a law treating people differently is reasonable, it asks whether the classification employed serves "important governmental objectives" and whether the classifications are "substantially related to achievement of those objectives."24
The somewhat complicated jurisprudence surrounding the equal protection clause has plenty of critics. Some argue that there is an ironic inequality in the way that the equal protection clause is applied. Others accept the need for different tests for different classifications, but they argue that other groups should be considered "suspect' classes. Advocates for the poor and the elderly argue that laws impacting these should receive a heightened review, and gay rights advocates say that, at the very least, they would like to see laws impacting gays and lesbians receive the intermediate standard of review.
The courts' interpretation of the equal protection clause is indeed both complex and controversial. And while not everyone is pleased with the application of the Fourteenth Amendment, our preoccupation with these questions shows that, even though the word may not exist in the Constitution, equality remains a fundamental concern for the courts and the public.