Alaska Equal Protection: Constitutional Law or Common Law?

• Citation: Vol. 15
• Publication year: 1998

§ 15 Alaska L. Rev. 209. ALASKA EQUAL PROTECTION: CONSTITUTIONAL LAW OR COMMON LAW?

Alaska Law Review
Volume 15
Cited: 15 Alaska L. Rev. 209

ALASKA EQUAL PROTECTION: CONSTITUTIONAL LAW OR COMMON LAW?

PAUL E. MCGREAL ^[*]

PROLOGUE

I. INTRODUCTION

II. FEDERAL EQUAL PROTECTION ANALYSIS

A. An Overview of Equal Protection Methodology

B. Laws that Classify Based on Race, Ethnicity, or Alienage

C. Laws that Classify Based on Gender

D. And the Rest: All Other Classifications

E. The Problem of Actual Purpose

III. ALASKA EQUAL PROTECTION

A. Development of Alaska's Sliding Scale

B. The Sliding Scale as Pure Means-End Analysis

C. Alaska Means-End Analysis in Practice

D. Implications of Alaska's Means-End Analysis

IV. CONCLUSION: A PROPOSAL FOR FUTURE STUDY

FOOTNOTES

PROLOGUE

This Article is written in honor of Justice Jay A. Rabinowitz, who only recently has ended the longest tenure on any state bench in Alaska. During my year clerking for the Alaska Supreme Court, I am happy to say that Justice Rabinowitz not only served as a valued mentor, but became a trusted friend. Since leaving [*pg 210] Alaska, our friendship has grown, and I have often turned to him for advice as I navigate a life in the law. For these reasons, I am honored to participate in an issue of the Alaska Law Review that honors this great person and lawyer.

In many ways, the work that follows is a product of the time I spent with Justice Rabinowitz. In our discussions over cases, briefs, and arguments, he helped me see the subtle under-currents that run through the law. What was on the surface was not always what ultimately mattered. This Article builds on that insight by beginning a critical examination of state constitutional law, using Alaska equal protection doctrine as the springboard.

I. INTRODUCTION

Federalism is making a comeback. ^[1] Both case law and commentary pay increased attention to the federal-state relationship in our American system of government. ^[2] Much of the attention has [*pg 211] focused on the constitutional limits of federal power, with the implicit assumption that such limits necessarily protect the states. ^[3]

The reasons we protect federalism are well rehearsed. First, by splitting power between levels of government, federalism dilutes power and protects individuals from government oppression. ^[4] In this regard, federalism shares goals with the principle of separation of powers, which divides power among branches of government, to prevent concentration of power. ^[5] Second, federalism preserves state and local governments as laboratories for policy experimentation. ^[6] Each state is free, within the confines of the [*pg 212] federal constitution, to experiment with novel solutions to shared problems. ^[7] Thus, experimentation should hasten progress as the several states can learn from one another's experiences. ^[8]

This Article joins the debate over the second justification for federalism. The implicit assumption of that justification is that states will, if left to do so, experiment. ^[9] This Article begins an examination of that assumption in the area of state constitutional law, using Alaska equal protection doctrine as the initial focus. The last decade has seen an increased interest among commentators in the question of whether state constitutional law adds anything new to the discipline of constitutional law, or whether the whole enterprise merely reduces to individual state courts expressing their disagreement with particular decisions of the United States Supreme Court. ^[10] If interpretation of state constitutions is [*pg 213] limited merely to rehashing the rationales of Supreme Court opinions, then state constitutional law adds little to the debate. ^[11] Regardless of one's view, state constitutional law is a growing body of law that commentators and practitioners neglect at their own peril. ^[12]

[*pg 214] Alaska equal protection doctrine offers a unique opportunity to study the independent development of state constitutional law. For the last twenty years, the Alaska Supreme Court has applied a different equal protection test from that applied under federal equal protection doctrine. ^[13] This Article examines Alaska case law to see if Alaska's experiment really offers anything new. Ultimately, we will see that the answer is both "yes" and "no." Alaska equal protection doctrine is different from federal equal protection doctrine, but is not significantly different from state court common law reasoning. This Article develops this thesis in three parts.

Part II of this Article surveys the federal constitutional doctrine of equal protection. The doctrine incorporates the method of means-end analysis, asking first whether the government is pursuing a permissible end, and then asking whether the law is an adequate means toward achieving the government's end. ^[14] The Supreme Court uses three levels of means-end scrutiny. The strictest level of scrutiny -- known, appropriately enough, as "strict scrutiny" -- applies to laws that discriminate based on race, alienage, and national origin. ^[15] Such laws are rarely upheld. ^[16] The next strictest level of scrutiny -- known as "intermediate scrutiny" -- applies to laws that discriminate based on gender. ^[17] Such laws gen- [*pg 215] erally are struck down if the Court believes that they are based on a gender stereotype. ^[18] The most lenient level of scrutiny -- known as "rational basis review" -- applies to all other laws. ^[19] The Court generally upholds such laws unless it determines that the government acted based on a desire to harm a specific group. ^[20]

Part II also offers an original synthesis of the Supreme Court's equal protection cases. While some have criticized the Court's three levels of scrutiny as a rigid three-tiered hierarchy, ^[21] the cases really reduce to a single inquiry: Does the government have some neutral, independent reason for distinguishing between groups of people, or is the law motivated by a bare dislike of the burdened group? ^[22] The different equal protection tests are really the means adopted by the Court to answer this question. Without such a guiding rationale, the means-end scrutiny of equal protection would be largely an unguided inquiry. As discussed below, whether a particular law is an adequate means to achieve the government's end is a difficult policy judgment that courts are ill-suited to perform. ^[23] In questions of equal protection, however, the Supreme Court does not use a pure means-end analysis. Rather, means-end scrutiny is used to determine whether the government has acted out of prejudice or on a neutral basis.

An example should illustrate how means-end analysis can help evaluate an actor's purpose. Suppose a neighbor with whom you are on questionable terms offers to wash your car. Given the [*pg 216] history of your relationship, you are suspicious that her offer might be less than genuine, but you nonetheless agree. Since you are suspicious of your neighbor's motives, however, you watch as she begins washing your car. You notice that she is using water from mud puddles on the ground. At this point, you probably think (as you run out the door to stop her), "Hmm. If she really wanted to wash my car, she probably wouldn't use muddy water. That scoundrel probably wants to damage my car." This is an instance where analyzing the means of accomplishing an objective has revealed a person's true end. Your neighbor asserted that her end was to wash your car. Yet, the means she chose (muddy water) were so ill-adapted to the task that you concluded that she must have had another purpose. This conclusion was bolstered by your suspicion of her motives given your prior history of ill will. The means-end analysis "smoked out" your neighbor's true purpose.

Equal protection means-end analysis performs a similar "smok[ing] out" function. ^[24] The government will enact a classification and will assert a purpose behind that classification. If the classification is a poor fit to the government's purpose, we might suspect that the government acted on another, unspoken purpose. This suspicion will be quite high with classifications that historically have resulted from prejudice, such as race and gender discrimination. ^[25] Whatever the classification, though, the Court uses means-end scrutiny to test the government's asserted purpose and determine whether a law really is enacted out of bias or prejudice. Part II develops this point in discussing the three tiers of the federal equal protection test.

Part III traces the development of Alaska's equal protection analysis. Like federal equal protection, Alaska courts use means-end scrutiny to address equal protection violations. Unlike federal equal protection, however, Alaska has rejected the three tiers of scrutiny in favor of a "sliding scale" comprised of multiple levels of scrutiny that are tailored to the specific law at issue.

The most important difference between federal and Alaska equal protection analysis is that the Alaska test does not use means-end scrutiny to "smoke out" prejudice. Rather, the Alaska Supreme Court engages in pure means-end scrutiny, making policy judgments about whether the challenged law adequately meets the government's purpose. ^[26] Whereas the Supreme Court has constrained the means-end analysis of equal protection by limiting it [*pg...