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."