The Equal Protection Guarantee and the Supreme Court
Winter 2025
Leora Harpaz

Class 8 - Feb. 27, 2025

Information about various state laws on gender-affirming care:

https://www.findlaw.com/lgbtq-law/state-laws-on-gender-affirming-care.html#:~:text=for%20transgender%20adults.-,Georgia,individuals%20receiving%20gender%2Daffirming%20care.


Yick Wo v. Hopkins (1886)

1.
Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

2. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws. . . .

Griffin v. County School Board of Prince Edward County (1964)

But the record in the present case could not be clearer that Prince Edward's public schools were closed, and private schools operated in their place with state and county assistance, for one reason and one reason only: to ensure, through measures taken by the county and the State, that white and colored children in Prince Edward County would not, under any circumstances, go to the same school. Whatever nonracial grounds might support a State's allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.

Washington v. Davis (1976)

1. Our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.

2. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing.

Village of Arlington Heights v. Metropolitan Heights Housing Corp. (1977)

Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one. [Instead, the plaintiff has to show that an] "invidious discriminatory purpose was a motivating factor."


Text of the Fourteenth Amendment
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."


Truax v. Raich (1915)

[T]he complainant, a native of Austria, has been admitted to the United States . . . with the privilege of entering and abiding in the United States, and hence of entering and abiding in any State in the Union. Being lawfully an inhabitant of Arizona, the complainant is entitled under the Fourteenth Amendment to the equal protection of its laws. The description -- "any person within its jurisdiction" -- as it has frequently been held, includes aliens.

It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure. If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.

The discrimination defined by the act does not pertain to the regulation or distribution of the public domain, or of the common property or resources of the people of the State the enjoyment of which may be limited to its citizens, as against both aliens and the citizens of other States.

Takahashi v. Fish & Game Commission (1948)

(Quoting Raich) The authority to control immigration -- to admit or exclude aliens -- is vested solely in the Federal Government. The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for, in ordinary cases, they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality.

The state's law here cannot be supported in the employment of this legislative authority because of policies adopted by Congress in the exercise of its power to treat separately and differently with aliens from countries composed of peoples of many diverse cultures, races, and colors. For these reasons, the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.

Murphy, J., concurring

§ 990 of the California Fish and Game Code, barring those ineligible to citizenship from securing commercial fishing licenses, is the direct outgrowth of antagonism toward persons of Japanese ancestry. Even the most cursory examination of the background of the statute demonstrates that it was designed solely to discriminate against such persons in a manner inconsistent with the concept of equal protection of the laws. Legislation of that type is not entitled to wear the cloak of constitutionality. . . . The statute in question is but one more manifestation of the anti-Japanese fever which has been evident in California in varying degrees since the turn of the century.

Graham v. Richardson (1971)

But the Court's decisions have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a "discrete and insular" minority for whom such heightened judicial solicitude is appropriate. Accordingly, it was said in Takahashi that "the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits."



Class 7 - Feb. 20, 2025

Title VII of the Civil Rights Act of 1964:

It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . .


Class 6 - Feb. 13, 2025

RBG Action Figure: https://fctry.com


Class 5 - Feb. 6, 2025

Muller v. Oregon (1908):

That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical wellbeing of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race. . .[S]he has been looked upon in the cts as needing especial care that her rts may be preserved.”


Characteristics of a Suspect Class

The following are characteristics that the Supreme Court has identified in various cases as the traits that are associated with a suspect class. While it is not necessary for each trait to be present for a class to be considered suspect, the absence of any of the listed traits might cause the Supreme Court to refuse to declare the class to be suspect. However, the absence of a few of the listed traits would not be fatal to a class being considered quasi suspect as in the case of gender.

(1) The group discriminated against has suffered from a history of past discrimination in their treatment by the legal system;

(2) The trait that is the basis for the discrimination generally bears no relationship to a person's ability to contribute to society (and is likely based on stereotypical thinking about the abilities of the class rather than real differences);

(3) The trait shared by the members of the class is often singled out to reinforce prejudice against the group or label the group as inferior;

(4) The group discriminated against is relatively politically powerless by its numbers in the population, by under-representation in government, or by its inability to influence the legislative agenda;

(5) The trait shared by the group is central to personal identity (previously referred to as an immutable characteristic)

(6) The class is a "discrete and insular minority" based on whether the trait is a distinct trait, whether the group that shares the trait is a minority in the population, and whether the group is "insular" in the sense of often living in a separate community or interacting most frequently with other members of the group; and

(7) The trait is visible.




Class 4 - Jan. 30, 2025


Bradwell v. State of Illinois - Justice Bradley's Concurring Opinion:

“It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The Constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state, and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most states. One of these is that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases."

Amendment XIX:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.
Congress shall have power to enforce this article by appropriate legislation.

Muller v. Oregon (1908):
“That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical wellbeing of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”

Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved.”

Goesaert v. Cleary (1948):
Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that, as to a defined group of females, other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition. Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid's husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws. We cannot cross-examine, either actually or argumentatively, the mind of Michigan legislators, nor question their motives. Since the line they have drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.

Hoyt v. Florida (1961):
"Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.”
 

Class 3 - Jan. 23, 2025

no posted material for this class


Class 2 - Jan. 16, 2025

Pictures of segregated facilities:

water fountain - http://images.slideplayer.com/1/239553/slides/slide_50.jpg

bus station waiting room -
https://www.thenation.com/article/archive/steve-luxenberg-separate-plessy-ferguson-book-review/

movie theater -

https://upload.wikimedia.org/wikipedia/commons/e/e7/Rex_theatre.jpg

laundry - http://i.ytimg.com/vi/c-7eNRB2_0Q/hqdefault.jpg

Class 1 - Jan. 9, 2025

Text of Fifth Amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Text of the Fourteenth Amendment:
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Equal Protection Tests (Standards of Review)

1.  MINIMUM SCRUTINY TEST (also called rational basis test and minimum rationality review)

Is the use of the classification rationally related to a legitimate government interest?

(The challenger must prove that the use of the classification is not rationally related to a legitimate government interest.)

2.  INTERMEDIATE SCRUTINY TEST

Is the use of the classification substantially related to the accomplishment of an important government interest?

(The government must prove that the use of the classification is substantially related to the accomplishment of an important governmental objective, but the government need not prove that the use of the classification is absolutely necessary to the accomplishment of the objective only that there is a close fit between the use of the classification and the government's objective.)

3.  STRICT SCRUTINY TEST

Is the use of the classification necessary to the accomplishment of a compelling government interest?

(The government must prove that it cannot achieve its compelling objective without the use of the classification. In other words, that there is no less discriminatory classification that the government can employ in order to achieve its compelling objective. Alternative less discriminatory classifications can be ones that don't employ the suspect trait at all as well as classifications that employ the trait, but to a lesser extent. Sometimes the phrase narrowly tailored is used instead of the word necessary, but in the context of strict scrutiny narrowly tailored means necessary.)

Railway Express Agency, Inc. v. New York (1949):

1. "The local authorities may well have concluded that those who advertise their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use. It would take a degree of omniscience which we lack to say that such is not the case. If that judgment is correct, the advertising displays that are exempt have less incidence on traffic than those of appellants. We cannot say that that judgment is not an allowable one.

2. And the fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch what may be even greater ones in a different category, such as the vivid displays on Times Square, is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all."

New Orleans v. Dukes (1976):

"The city could reasonably decide that newer businesses were less likely to have built up substantial reliance interests in continued operation in the Vieux Carre and that the two vendors who qualified under the 'grandfather clause'—both of whom had operated in the area for over 20 years rather than only eight—had themselves become part of the distinctive character and charm that distinguishes the Vieux Carre. We cannot say that these judgments so lack rationality that they constitute a constitutionally impermissible denial of equal protection."