Equal Protection and Welfare Legislation: the Need for a Principled Approach

• Publication year: 1978
• Citation: Vol. 1 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 1, No.1FALL 1977

Equal Protection and Welfare Legislation: The Need for a Principled Approach

Lynda D. Frazier

The Warren Court developed an equal protection legacy ripe for unprincipled judicial intervention(fn1) and expansive notions of equality.(fn2) By limiting the number of classifications found suspect and interests deemed fundamental, the Burger Court curtailed the most speculative aspects of equal protection and also restricted judicial use of strict scrutiny.(fn3) The Burger Court, however, has applied inconsistent criteria for minimal rationality review of legislation not involving suspect classifications or fundamental rights. The Supreme Court decision in Maker v. Roe,(fn4) denying an equal protection claim to Medicaid payments for elective abortions, illustrates the Court's inconsistent application of minimal rationality standards to socioeconomic legislation. This comment analyzes Maker in light of recent irreconcilable Supreme Court decisions involving similar equal protection claims to welfare payments. It shows that the Court's standard of review vacillates between deferential abdication to the legislature and unexplained judicial interventionism, and concludes that until the Court adheres to a consistent and principled approach to minimal rationality review, equal protection will remain an area for unrestrained imposition of judicial, rather than constitutional, values. The alternative offered is an articulated rationality test that would limit the Court to reviewing state-articulated, rather than Court-hypothesized, objectives.(fn5)

Traditionally, the equal protection clause of the fourteenth amendment prohibited a state from discriminating between two similarly situated classes of people unless the disparate treatment rationally related to the legislative purpose.(fn6) Recognizing the balance between the roles of the Court and the legislature, the Court presumed legislatures acted constitutionally, even though legislation often resulted in some inequality.(fn7) Allowing legislatures considerable flexibility, the Court tolerated both overinclusive and underinclusive classifications.(fn8) Under this minimal standard of review, the Warren Court gave deference to imaginable supporting rationales and conceivable legislative objectives when reviewing socioeconomic legislation.(fn9) The Burger Court, however, has been less willing to hypothesize legitimate legislative objectives to justify a classification.(fn10)

Although retaining traditional minimal rationality standards in reviewing socioeconomic legislation, the Warren Court's expansion of a second, higher level of scrutiny revolutionized equal protection analysis.(fn11) Under this two-tier scheme, the Court applies strict scrutiny if the legislation either infringes a fundamental right(fn12) or involves a suspect classification.(fn13) Strict scrutiny imposes two requirements that are absent from minimal rationality review. First, the means must substantially, not merely minimally, further the ends, because unlike minimal review, strict scrutiny tolerates neither overinclusive nor underinclusive classifications.(fn14) To assure the necessary relationship between the means and the ends, the Court strikes down the statutory scheme if other reasonable, less discriminatory, alternatives exist for accomplishing the legislative objective. Second, the Court requires the state to advance a compelling, overriding justification for infringing a fundamental interest or using a suspect classification.(fn15)

The post-Civil War case of Strauder v. West Virginia(fn16) laid the framework for heightened judicial review of legislation based on suspect criteria. In Strauder, a black man convicted of murder contended the state had denied him equal protection because no black man was eligible for grand jury duty. Referring to the historical reasons for the amendment's adoption, the Court concluded that Congress had enacted the fourteenth amendment to prevent continued inferior treatment of blacks.(fn17) According to Strauder, the blacks were a historically disfavored class that society had long regarded as an inferior race.(fn18) Viewing the black race as uneducated and incapable of adequately protecting its interests, the Court held that blacks commanded extraordinary protection from the majoritarian process that had habitually engaged in racial discrimination.(fn19)

Under the two-tier scheme, the Warren Court expanded the rationale of suspect classifications beyond politically impotent minorities.(fn20) Courts now strictly scrutinize classifications involving groups historically subjected to class hatred or to sociological badges of inferiority.(fn21) Normally, these classifications are based on immutable congenital traits over which the individual has no control.(fn22) Because such traits bear no relation to the individual's ability to contribute to society, he or she should not suffer adverse consequences.(fn23) Based on this rationale, the Court also strictly scrutinizes legislation affecting classes delineated by alienage(fn24) and lineage.(fn25)

In addition to these well-established categories, the Warren Court implied that classifications based on wealth might also be suspect.(fn26) The decisions indicating the suspectness of wealth, however, involved access to the judicial or legislative processes that the state primarily, if not exclusively, controls.(fn27) Because the private sector, rather than the state, normally satisfies a person's economic needs, the Burger Court has refused to expand strict scrutiny of wealth classifications outside of the judicial and legislative contexts.(fn28) Moreover, indigency does not meet the traditional criteria for determining suspectness. The multitude of government assistance programs demonstrate the poor are not a politically impotent minority. Additionally, indigency is not based on immutable characteristics over which the individual has no control, nor does indigency carry an obvious badge of inferiority.(fn29) Finally, discrimination against the poor has never been as severe or pervasive as the historical and political discrimination against racial minorities and aliens.(fn30)

Besides suspect classifications, the Court also applies strict scrutiny to legislation infringing fundamental rights. Skinner v. Oklahoma,(fn31) the progenitor of the fundamental rights strand of equal protection analysis, invalidated a law requiring compulsory sterilization for certain convicted felons. The Court held that the legislation affected procreation, one of man's basic civil rights, and that any deprivation of an individual's basic liberties demanded the Court's strict scrutiny to assure the constitutional guarantee of equal protection of the laws.(fn32) Although the Constitution does not identify fundamental rights explicitly, the Court has derived these rights from the concept of liberty embodied in the fourteenth amendment's due process clause and the interests protected by the Bill of Rights.(fn33) The Court deems these rights essential to a scheme of ordered liberty, based on "principle[s] of justice . . . rooted in the traditions and conscience of our people."(fn34)

The Warren Court expanded the concept of fundamental rights into such areas as voting,(fn35) criminal procedure,(fn36) and the right to privacy,(fn37) and implied that necessities such as welfare benefits and housing might also be fundamental.(fn38) The Burger Court, however, has declined to find a citizen's interests in welfare(fn39) and housing(fn40) fundamental. These interests have less constitutional significance than the guarantee of effective equal access to the criminal or political process because such economic rights are not essential to the fourteenth amendment's concept of liberty and equality.(fn41) Economic equality is not constitutionally mandated because it is not an interest protected by the Bill of Rights nor is it essential to a scheme of ordered liberty.(fn42) Welfare and housing are in the area of social and economic legislation and their assurance is a legislative, not a judicial, function.(fn43)

The Burger Court's foreclosure of the more speculative aspects of strict scrutiny is not the only adaptation the Court has made to the rigid two-tier scheme. Although retaining the two-tier scheme in form, the present Court has applied a spectrum of standards that has blurred the sharp distinctions separating the levels of scrutiny used by the Warren Court.(fn44) Invocation of minimal rationality review no longer signifies deference to the legislative classification and automatic validation of the challenged statute. Instead, the Burger Court appears to vary the standard of review with which it scrutinizes classifications according to the Court's own opinion of the constitutional and societal importance of the interest adversely affected, and the suspectness with which the particular classification is drawn.(fn45) Accordingly, various formulations of mere rationality standards exist without any consistent approach to their use. The Court's decision in Maker illustrates not only the Court's reluctance to expand strict scrutiny analysis to welfare classifications, but also the Court's inconsistency in minimal rationality review.

The equal protection claim before the Court in Maher involved a state's distribution of Medicaid payments. Two indigent women attacked the validity of a...