Study Guide

Equal Protection Introduction

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Equal Protection Introduction

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."blank" href="" title="Equal Protection Photos">Equal Protection Photos

What is Equal Protection About and Why Should I Care?

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.

Equal Protection Trivia

After San Francisco mayor Gavin Newsom ordered the city clerk to issue marriage licenses to same-sex couples, the first couple in line was Del Martin and Phyllis Lyon. The two met in Seattle in 1950, moved into an apartment in San Francisco on Valentine's Day 1953, and lived together until Martin died in 2008.

Future Supreme Court justice Ruth Bader Ginsburg was a lawyer for the Women's Rights Project at the ACLU when was heard by the Supreme Court. Writing that she was "delighted to see the Supreme Court is interested in beer drinkers," she submitted an amicus curiae brief on behalf of Craig.

Equal Protection Resources


Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (2006)
This is a first-rate book about the origins of the Fourteenth Amendment. It is sophisticated in its treatment of the background issues and the congressional debates, but it is also accessible to a broad audience. For those interested in placing this critical amendment within its historical context, this book is the place to start.

Lydia Chavez, The Color Bind: The Campaign to End Affirmative Action (1998)
This is an interesting account of California's battle over affirmative action. The book focuses far more on the political than the legal issues and, in places, Chavez chooses to maintain the pace of her narrative rather than explore questions in greater analytical detail. But, overall, this is a highly readable and provocative look at a continuing controversy.

Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1997)
Harvard legal scholar Raoul Berger is among those critical of the courts' expansive interpretation of the Fourteenth Amendment. In this densely argued account, he contends that the original purposes of the amendment's framers have been usurped by judges anxious to find a constitutional basis for social and legal reform. This book is not for the casual reader, but if you are interested in this take on the Fourteenth Amendment, this is an authoritative account.

Melba Pattillo Beals, Warriors Don't Cry: A Searing Memoir of the Battle to Integrate Little Rock's Central High (1995)
This memoir by one of the Little Rock Nine provides an interesting look at the impact of a historical court decision on the students left to fight the next battle in the campaign to integrate America's schools. The political and legal issues are given scant attention, but students, in particular, might find this book's account of the day-to-day challenges of a black student at Central High School compelling.


Women Warriors
Female cadets greet Vice President Dick Cheney at the Virginia Military Institute. Their admission to the formerly all-male military school was made possible through United States v. Virginia.

Welcome to VMI
One of the Virginia Military Institute's first female cadets, Megan Smith, endures the "ethos-building" welcome of upper classmen.

Reverse Discrimination?
Allan Bakke, the white applicant who challenged the University of California, Davis Medical School's affirmative action policies.

Lawrence v. Texas
Tyron Garner and John Geddes Lawrence, the successful petitioners in Lawrence v. Texas, the landmark Supreme Court case that struck down the state's "Homosexual Conduct law.

Historic Victory
George E.C. Hayes, Thurgood Marshall, and James Nabrit celebrate the Court's ruling in Brown v. Board of Education. Marshall, chief counsel for the NAACP, later would become the first African-American justice on the United States Supreme Court.

Earl Warren
Chief Justice Earl Warren, author of the Supreme Court's opinion in Brown v. Board of Education.

Historic Wedding
Mayor Gavin Newsom presides over the marriage of Del Martin and Phyllis Lyon in 2008.

"Our Constitution is Color-blind"
In Plessy v. Ferguson, the Supreme Court decision that established the doctrine of "separate but equal," Justice John Marshall Harlan wrote an inspiring dissent: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law."_CITATION74_

Movies & TV

Eyes on the Prize: Fighting Back, 1957-1962 (1986)
Part two of the Oscar-nominated documentary about the Civil Rights Movement chronicles the obstacles to the enforcement of a Supreme Court ruling against segregated public schools, including the turbulent months at Little Rock Central High School.

I Can't Marry You (2003)
This documentary takes a look at gay marriage by exploring the experiences of 20 gay and lesbian couples. The film is narrated by Betty DeGeneres, mother of Hollywood gay activist Ellen DeGeneres, and was made by FYI Production, a company committed to "educating Americans and making the legal right of marriage a reality for every couple."


Annotated Constitution
The Legal Information Institute of Cornell University Law School hosts the Congressional Research Service's Annotated Constitution, a highly useful source for studying the Constitution. An entire section is devoted to the Fourteenth Amendment, with a subsection dedicated to the equal protection clause.

Supreme Court Cases
Oyez, a searchable database of United States Supreme Court cases, is an excellent source for studying American legal history. The site provides efficient case summaries, audio files of the oral arguments, and links to written opinions.

Web Guide
The Library of Congress has created a web guide for the Fourteenth Amendment that includes historical documents, links to useful cites, and a selected bibliography.

Primary Sources

Supreme Court Cases
Oyez, a searchable database of United States Supreme Court cases, provides audio files of the oral arguments and links to written opinions.

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