Does the Constitution guarantee equality for all people?

Not exactly. The closest thing to this sort of guarantee is found in the equal protection clause of the Fourteenth Amendment that says that the states shall not "deny to any person within its jurisdiction the equal protection of the laws."

Doesn't the Constitution say that "all men are created equal?"

No. This phrase is found in the Declaration of Independence and that document has no real legal power. It was written to declare and explain our separation from Great Britain. And while it may offer a set of ideals that we as a nation are committed to, it does not carry the sort of legal weight held by legislative statutes or judicial precedents.

What exactly does the equal protection clause guarantee?

Most basically it grants to the federal government the authority to ensure that the states do not apply their laws or policies in a discriminatory manner. The Fourteenth Amendment does not empower the federal government to intervene in private matters; that is, it cannot prevent certain types of private discrimination.

Does this mean that private businesses and clubs can discriminate?

To a certain extent. The courts have held that some private discriminatory acts are beyond the control of the federal government under the Fourteenth Amendment. But as soon as the states become a party to this discrimination the federal government can intervene. For example, if a private organization tries to enforce its discriminatory policies in the state courts, the state courts become accomplices, in effect, and in violation of the Fourteenth Amendment. In addition, Section 5 of the Fourteenth Amendment grants Congress the power to "enforce" this amendment "by appropriate legislation." Some have argued that this confers on Congress a broad authority to advance the objectives of the Fourteenth Amendment. But the Court has tended to interpret this clause narrowly; as recently as 2000, the Court held that Section 5 does not give Congress the power to restrain private discrimination. On the other hand, Congress has used its powers under the commerce clause to bar discrimination in private businesses with some connection to interstate commerce.

Why was the Fourteenth Amendment added to the Constitution?

The Fourteenth Amendment was proposed shortly after the Civil War by northerners who realized that southern states were reducing the recently freed slaves to second class citizens. For example, freedmen were shut out of the political process and reduced to a slavery-like status by local vagrancy laws. To redress these injustices, the Fourteenth Amendment was proposed to ensure that the rights of freedmen were protected.

Does this mean that only African Americans are protected by the Fourteenth Amendment?

No. While protecting the freedmen from southern violations was clearly the primary intent of the Fourteenth Amendment, when Congress drafted the amendment it employed more inclusive language and extended constitutional protection to "any person." As a result, the Fourteenth Amendment has been interpreted to convey a tiered governmental responsibility. While all persons are provided a fundamental guarantee of equal treatment under the law, the Court has held that certain persons are entitled to more rigorous protection from the courts.

How do the courts apply their tiered-interpretation of the equal protection clause?

The courts use different tests to evaluate laws employing different sorts of classifications. "Race" has been labeled a "suspect" class and therefore the courts apply "strict scrutiny" to all laws that incorporate some sort of racial classification. Laws that employ different sorts of classifications, such as age and income level, are evaluated by a less rigorous test. Using the "Lindsley test," the courts ask simply if the classification is reasonable. In recent decades, the Supreme Court also introduced an "intermediate" standard for evaluating laws that incorporate gender classification. If a state passes a law that treats men and women differently, the courts demand proof that the law pursues an "important government objective" and that the use of a gender classification is "substantially related" to the achievement of that objective.

What court case established this intermediate standard of review for gender discrimination?

Craig v. Boren. In 1976, an eighteen-year old boy, Curtis Craig, challenged the constitutionality of an Oklahoma law that allowed girls to drink 3.2% beer at age eighteen and boys at age 21. The Supreme Court ruled in Craig's favor and stated that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives."²

Is all gender discrimination illegal since Craig v. Boren?

No. The Supreme Court has upheld some state laws that employ gender classifications. For example, in 1981 the Court upheld a national draft law that excluded women since the government's objective was "important" (to identify a pool of combat-eligible people) and treating men and women differently was "substantially related" to achieving that objective (the military and the Senate convinced the Court that women were generally ill-suited for combat).

Has Craig v. Boren opened any doors for women?

Yes. Using the intermediate standard of judicial scrutiny established in Craig, the courts have upheld many legal challenges to state laws that discriminated against women. For example, in 1996 the Supreme Court ruled that the Virginia Military Institute's exclusion of women was unconstitutional. Reminding VMI that the Court was obligated to take a "hard look" at any law or practice incorporating gender classifications, it held that "generalizations about 'the way women are,' estimates of what is appropriate for most women," could not be allowed to restrict opportunities for women "whose talent and capacity place them outside the average description."³

Are other classifications or categories of people, such as gays and lesbians, protected by the equal protection clause?

Yes. In 1996, the United States Supreme Court ruled that gays and lesbians were a distinct legal classification and entitled to collective protection under the Fourteenth Amendment. In earlier cases, the Court held that homosexual activity could be punished under state law.

What level of judicial scrutiny do laws incorporating classifications based on sexual orientation receive?

Thus far, the United States Supreme Court has applied the lowest level of scrutiny to these sorts of cases. It has used the Lindsley test and demanded only that the use of this sort of classification be reasonable. But state courts have applied a more rigorous standard in reviewing laws challenged as discriminatory against gays and lesbians. For example, the Iowa State Supreme Court used an intermediate standard of review in striking down a state law that banned gay marriage.

Is gay marriage legal? Is it protected by the equal protection clause of the Fourteenth Amendment?

As of April 2009, gay marriage was legal in four states—Connecticut, Vermont, Massachusetts, and Iowa. It was also briefly legal in California until voters passed an initiative in 2008 limiting marriage to heterosexual couples. In Connecticut, Massachusetts, and Iowa same-sex couples were given the right to marry by state supreme courts that based their decision on equal protection clauses in their state constitutions. There is no national right to marry for same-sex couples. The United States Supreme Court has not held that this is a right protected by the equal protection clause of the federal Constitution.

Is race the only "suspect" class, the only type of classification that receives the most rigorous standard of scrutiny from the Court?

Generally. But on occasion, laws according different treatment to people on the basis of citizenship have also received "strict scrutiny."

What did Brown v. Board of education achieve?

This 1954 case overturned the doctrine of separate but equal established in Plessy v. Ferguson (1896) and led to a court order that school districts develop plans to integrate their school "with all deliberate speed."

What did Brown v. Board of education fail to achieve?

The immediate integration of America's schools. More than a decade later after the Court's ruling, it found inadequate proof of progress toward the objective defined in Brown. As Justice Hugo Black complained, "'all deliberate speed' has turned out to be only a soft euphemism for delay . . . there is no longer the slightest excuse, reason, or justification for further postponement of the time when every public school system in the United States will be a unitary one, receiving and teaching students without discrimination on the basis of their race or color."⁴

Did the Court order schools to adopt affirmative action programs to diversify their student bodies?

Not exactly. A federal court first ordered the use of a quota system to increase the number of African American officers on the Alabama State Trooper force in 1970. At around the same time, Richard Nixon ordered Philadelphia's private contractors doing business with the federal government to set minority hiring "goals and timetables." Colleges developed affirmative action programs shortly after these events.

Has the Supreme Court ever ruled on the constitutionality of affirmative action programs in higher education?

Yes. The Court has reviewed affirmative action programs in several cases. The most important cases include Regents of the University of California v. Bakke, Gratz v. Bollinger, and Grutter v. Bollinger.

How did the Court rule in Regents of the University of California v. Bakke?

In this 1978 case, the United States Supreme Court ruled that while admissions quotas could not be used by colleges to increase minority enrollment, race could be used as one factor among many in evaluating student applications. Allan Bakke brought the suit after being denied admission to the University of California, Davis Medical School and discovering that minority applicants with lower grades and test scores had been admitted to fill sixteen admissions slots (out of a total class of 100) that had been set aside for minority applicants.

How did the Court rule in Gratz v. Bollinger and Grutter v. Bollinger?

In these 2003 cases involving the University of Michigan's undergraduate and law school admissions policies, respectively, the United States Supreme Court served notice that affirmative action programs employing racial classifications would be subject to close scrutiny by the Court. If racial classifications were applied too heavily, as was the case with Michigan's undergraduate admissions policies, according to the Court, they would be struck down. If race was used more carefully along with many other factors in order to achieve diversity, as was the case with the law school admissions program, the Court would accept it. But, added Justice Sandra O'Connor, the Court's support for even these more carefully structured programs was limited. Within a generation, she suggested, the use of these sorts of racial classifications would not be acceptable to the Court.