Some of Us Are More Equal than Others
While the United States began its existence as an independent political entity with the rhetorical declaration that it was “self-evident” that “all men are created equal”, the Founders did not assign any legal significance to this phrase. It appears nowhere in the original Constitution, which expressly allowed for slavery.
Even after the American Civil War, the abolition of slavery, and the adoption of the Fourteenth Amendment in 1868 (which barred States from denying to any person “equal protection of the laws”) there remained doubt whether this principal of equality applied to anyone other than the African-American former slaves it was written to protect.
Indeed, within a decade, the Supreme Court ruled that the Equal Protection Clause did not give any political rights to women. see Minor v. Happersett, 88 U.S. 162 (1875). The Court did acknowledge that the Equal Protection Clause applied to racism in general, that it applied to covert racism (San Francisco law regulating “laundries” in fact regulated Chinese) and it applied to all persons within U.S. territory, not just “citizens” but also lawful resident aliens. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). Soon, however, the Court made the execrable decision to approve apartheid in Plessy v. Ferguson163 U.S. 537 (1896).
“Strict Scrutiny” or “Rational Basis”?
Soon the Court had a variegated legal patchwork: sometimes equality was mandated, sometimes it was not. Eventually there emerged a two-tier system for evaluating cases, and in particular, sifting out the ones that required special attention. They fall into two categories: suspect classes and fundamental rights. Cases fitting one of these categories get “strict scrutiny”. This usually results in the law in question getting declared unconstitutional. The law must serve a compelling government purpose and be narrowly tailored to accomplish that purpose.
The rest of the cases get a “rational basis test”, which is much more favorable to letting the law stand: is there any legitimate purpose for the law (other than discriminating against a group of unpopular people), and some conceivable connection between the challenged classification and the alleged purpose? While it is a fairly low hurdle to jump, some laws are so hopelessly discriminatory that they can’t even pass the “rational basis” test. An example is United States Department of Agriculture v. Moreno 413 U.S. 528 (1973). Plaintiffs challenged a food stamp statute that prohibited food assistance to households which included any persons unrelated to anyone in the household. The “legislative history" (speeches of the senator who sponsored the bill, which appear in the Congressional Record) indicated that the “purpose” of the statute was to prevent “hippies” living in communes from collecting food stamps. Since a naked desire to disadvantage an unpopular group is not a “legitimate government purpose”, this law flunked the rational basis test. Another example would be Colorado’s anti-gay Amendment 2, struck down in Romer v. Evans, 517 U.S. 620 (1996), which served no credible purpose other than discriminating against homosexuals.
The original “suspect class” was race: laws treating “negroes” differently from “white people”. Eventually, the Court was able to extend the Equal Protection Clause from “color” to “creed” (religion) and some classifications which were functionally equivalent to race: national origin, citizenship.
New "suspect classes" are not being recognized much anymore. In Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), for example, the Court refused to consider a very compelling argument that developmentally disabled people have suffered from a history of discrimination functionally equivalent to racism. However, the regulations challenged in Cleburne flunked the “rational basis” test. This seems to be the general trend today: the Supreme Court refuses to recognize new groups of people who must receive special attention, but the Court will nonetheless strike down particularly stupid laws as “irrational”.
Fundamental rights include all the rights explicitly mentioned in the Bill of Rights (freedom of speech, freedom of religion, freedom not to have soldiers quartered in your house) and elsewhere in the Constitution (Ex Post Facto Clause, Privileges and Immunities Clause, Contracts Clause).
Fundamental rights also include some rights which are not mentioned in the Constitution, but which have been judicially recognized as important and “implicit on the concept of ordered liberty”. Some examples of judicially created “fundamental rights” include:
- Travel from state to state: The Passenger Cases, 48 U.S. (7 How.) 283 (1849)
- Education and upbringing of children: Yoder v. Wisconsin
- Privacy, contraceptives: Griswold v. Connecticut, 381 U.S. 479 (1965)
- Marriage, interracial: Loving v. Virginia, 388 U.S. 1 (1967)
- Privacy, abortion: Roe v. Wade, 410 U.S. 113 (1973)
- Marriage, deadbeat dads: Zablocki v. Redhail, 434 U.S. 374 (1978)
- Right to refuse medical treatment:Cruzan v. Missouri Dept. of Health,
Laws which fall under this kind of scrutiny require a tight fit between the purported purpose of the statute and the means used to accomplish it. For example, while the Court acknowledged in Zablocki v. Redhail that getting deadbeat dads to pay their back child support was a compelling government interest, refusing to let them get married until they pay up is not the only solution.
“Sources? We don’t have any sources. We don’t need no stinkin’ sources!”
Dimly recalled law school and bar review outlines, and following that primitive but effective web of proto-hyperlinks, the case citation, using a super secret legal research technique ... *cough*google*/cough*.