Selective Incorporation apgoPo Excerpt of the text of the Fourteenth Amendment

The Equal Protection Clause and Strict Scrutiny

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The Equal Protection Clause and Strict Scrutiny

While the Declaration of Independence states as a self-evident truth that “all men are created equal,” it took nearly a century after Thomas Jefferson penned those words for the concept of equality to find its way into the U.S. Constitution. The equal protection clause of the Fourteenth Amendment, the first place in the U.S. Constitution in which the fundamental equality of individuals is acknowledged, states that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This clause has become a powerful tool in striking down discriminatory state laws, but it raises the question: what does “equal protection” mean?

Importantly, the equal protection clause does not mean that everyone must be treated equally by the state. Rather, it means that a state government must provide “equal protection”; that is, when a state government treats people differently, it must have reasonable—and in some cases compelling—reasons for doing so.

An effective way to convey these different levels of scrutiny is to describe three hurdles of varying height. The highest hurdle that state laws need to clear in order to be upheld is the “strict scrutiny” standard. This standard requires that the government show that it has a compelling reason for the law in question, and that that compelling reason also advances a legitimate end of government. In equal protection cases, compelling reasons are necessary when different treatment by the government is based on race or national origin. These categories are called “suspect” classifications because of the history of de jure discrimination minority groups have experienced from state governments. Put differently, laws that treat people differently based on their race or national origin are considered to be the most suspect, and the courts use the “strict scrutiny” standard to determine whether they violate the equal protection clause. The state government must show that there is a compelling need for the law, and that the differing treatment based on race or national origin is necessary to achieving that compelling need. As a result of this strict standard, most laws that treat people differently because of their race or national origin have been struck down by the courts.

This standard was stated particularly clearly in a case that upheld a race-based restriction. Soon after the Japanese attack on Pearl Harbor in December 1941, the U.S. government ordered that citizens of Japanese descent be “excluded” from large areas of the country near the Pacific Ocean. In Korematsu v. United States (1944) the Supreme Court upheld the constitutionality of this policy while still applying the strict scrutiny standard for equal protection claims. In the majority decision of the Court, “Legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” Importantly, while the Court in Korematsu found a compelling reason to segregate Japanese Americans, it should be stressed that few constitutional scholars today agree with the Court’s reasoning, and in 1988 Congress awarded every formerly interned Japanese American $20,000 in reparations. Each also received an apology on behalf of the American people signed by President Ronald Reagan. Nonetheless, Korematsu is a clear example of the application of the strict scrutiny standard for Equal Protection claims.

A useful example of a case when the Court used the strict scrutiny standard to strike down a law comes from 1966. In Katzenbach v. Morgan the Court struck down a New York election law that required that voters be able to read and write English. In the just-enacted Voting Rights Act of 1965, however, Congress had declared that no person could be denied the right to vote in any election because of his or her inability to read or write English. In invalidating the New York law the Supreme Court contended that New York violated the equal protection clause by denying equal treatment to non-English speakers because of their national origin. As a result of this ruling, local election jurisdictions are required by the Voting Rights Act to provide ballots in multiple languages whenever five percent of the people in their jurisdiction belong to a “language minority.”

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