Reevaluating Suspect Classifications

JurisdictionUnited States,Federal
CitationVol. 35 No. 01
Publication year2011


Reevaluating Suspect Classifications

Marcy Strauss(fn*)

I. Introduction

State and federal governments inevitably classify and distinguish between individuals. Despite the promise of the Fourteenth Amendment's Equal Protection Clause,(fn1) the state rarely treats people equally, and the Clause does not require it to do so.(fn2) The government must simply justify any legal distinction between individuals with a sufficient rationale.(fn3) In most cases of unequal treatment under law, courts simply defer to the legislative judgment that the distinction is rational; only in certain unusual circumstances will the courts subject the government's classifications to more rigorous examination.(fn4)

This phenomenon is easily translated: courts employ different levels of scrutiny depending on whether the discrimination affects a suspect class.(fn5) Discrimination among "nonsuspect" classifications receives "rational basis scrutiny," which is highly deferential to the legislative judgment.(fn6) Those challenging such a law have the burden to establish that the law is not rationally related to any legitimate government purpose.(fn7) Although not all of these laws survive rational basis review, most do.(fn8) Laws that facially discriminate against a "suspect class," however, are subject to "strict scrutiny."(fn9) Here, the government must demonstrate a compelling purpose for the distinction drawn and prove that such a classification is necessary to achieve that purpose.(fn10) While some laws survive such rigorous scrutiny, most do not.(fn11) Finally, laws that affect a "quasi-suspect class" receive intermediate scrutiny review.(fn12) Such laws are upheld if the classification is substantially related to an important government purpose.(fn13) Striking down laws under an intermediate level of scrutiny is difficult but not insurmountable.(fn14)

Since the outcome of an equal protection case is largely determined by whether the group is designated as a suspect, quasi-suspect, or non-suspect class, one may assume that the test for distinguishing between the three types of classes has been carefully crafted and precisely defined. But despite decades of case law on this specific issue, nothing could be further from the truth.(fn15) The Supreme Court has not provided a coherent explanation for precisely what factors trigger heightened scrutiny. As one professor wrote, "[T]he Court uses a mixture of criteria to determine suspectness, creating an analytical muddle, and the boundary line between suspect classes and nonsuspect classes is drawn in a haphazard way."(fn16)

Why is the law in such disarray? There is at least superficial consensus for the basic premise of equal protection law: courts should be skeptical of-and should scrutinize more carefully-classifications involving politically powerless groups that have historically been discriminated against.(fn17) But beyond this basic truism, much is unsettled. What Professor Wilkinson said in 1975 remains true today: "[T]he law of suspect classes is largely one of latent confusion . . . . The criteria of suspectness have not been thoughtfully defined or consistently applied."(fn18)

This inconsistency is manifested in various ways. First, courts utilize various tests-what this Article will refer to as "factors"-to distinguish between suspect and nonsuspect classes.(fn19) Different courts emphasize different factors without any real explanation why some are more important than others. For example, some courts are exclusively concerned with the "discrete and insular" nature of the group, others focus on immutability of the group's characteristics, and still others are mostly concerned with the group's history of discrimination.(fn20)

Yet, even if courts were to agree on which factors should be emphasized in equal protection cases, there remains significant uncertainty about the precise definition and measure of each factor. Even the most commonly utilized factors have no clearly established meaning. What exactly constitutes a discrete and insular minority? What does immutability require? How do we determine if a group is "politically powerless"? Is it an absolute question or a relative one? If the latter, how much "powerlessness" is sufficient?(fn21) Is powerlessness measured by the inability to vote (so that minors under eighteen would be politically powerless), or by the ability to be adequately protected by the political process (so that minors would likely not be politically powerless)?(fn22) And even if the substantive definition of political powerlessness were universally defined, there remains the question of timing. Should powerlessness be measured from the date the law was passed (i.e., a law passed discriminating against women at a time when women could not vote), or at the time of the legal challenge?

Moreover, even if courts agreed on which factors to consider and the meaning of each factor, they do not emphasize each factor uniformly. For example, it is unclear what factors or elements are necessary to a finding of suspectness, what are sufficient, or whether all elements must be satisfied.(fn23) No readily definable test distinguishes between nonsuspect or suspect classification. Suspect classification presumably meets more of the elements, but it is unclear whether all, most, or merely some must be satisfied before a court will determine the class is suspect.(fn24)

The ambiguity surrounding equal protection analysis produces incoherent results.(fn25) Most would agree that the poor or the mentally infirm are groups that have suffered from political powerlessness and a history of discrimination. And most would agree that white males are not such a group. Yet, whites and males receive heightened scrutiny because race is a suspect class and gender is a quasi-suspect class, while the poor and disabled do not.(fn26)

This Article explores the inconsistencies and absurdities of the tests used to establish a suspect classification for equal protection purposes. Although scholars have discussed the factors for distinguishing nonsus-pect and suspect classes in the context of advocating a particular level of scrutiny for specific groups like homosexuals,(fn27) children,(fn28) the disabled,(fn29) and even felons,(fn30) there has been little systematic evaluation of the criteria without regard to a particular group. This Article attempts to provide that evaluation. It is primarily descriptive: the goal is to comprehensively and systematically expose the flaws, confusion, and unanswered questions that inure in the criteria for assessing suspect and nonsuspect classes.

Despite the fact that the levels of scrutiny appear fairly established, this critique is important. First, appraising what the Court has done in its equal protection jurisprudence (i.e., applying strict scrutiny for race and rational basis for age) requires consideration of the underlying justifications for the levels of scrutiny. As mentioned previously, the determinative question in equal protection analysis is what level of scrutiny to apply to a particular classification. Second, issues remain about what level of scrutiny to use in the future. The level of scrutiny for certain groups, most prominently sexual orientation, have not been determined. A reevaluation of the factors used to determine suspect classes is essential as the Court not only considers new groups(fn31) but also potentially reconsiders the level of scrutiny accorded to already established groups.(fn32) Finally, a restructuring of equal protection analysis requires a discussion about the standards for determining suspect and nonsuspect classes. Any debate over alternative approaches to equal protection analysis, such as whether the three-tiered approach of rational basis, intermediate scrutiny, and strict scrutiny should even exist, can proceed only after a review of the factors currently used by courts.(fn33)

Accordingly, in Part II, I present a brief background on the development of the equal protection doctrine's relevant provisions, exploring where the idea of suspect classes originated and what factors the Court developed to determine such classes. Part III discusses and evaluates each factor, and analyzes the meaning-or lack thereof-of each element and how it has been used or misused in case law. In Part IV, I elaborate on possible solutions to the incoherency.

II. Setting the Stage: A Brief Discussion of Equal Protection and the Development of Suspect Classifications

The Equal Protection Clause of the Fourteenth Amendment demands that no state shall deny any person equal protection of the laws.(fn34) Originally limited to protecting freed slaves,(fn35) the Clause was deemed the "last resort of constitutional arguments" and hence rarely invoked in its first fifty years.(fn36) Indeed, equal protection claims were uncommon until revitalized during the Warren Court.(fn37)

The notion that certain types of classifications warrant more rigorous review than others under the Equal Protection Clause is often traced to the U.S. Supreme Court's seminal pronouncement in United States v. Carolene Products Co.(fn38) In the 1938 case involving a federal law banning filled milk, the Court decided whether a unitary, deferential standard for evaluating government action under the Fourteenth Amendment Due Process and Equal Protection Clauses was constitutionally required.(fn39) In a famous...

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