International Information Programs

Chapter 1
The Roots of Religious Liberty
Chapter 2
Religious Liberty in the Modern Era
Chapter 3
Freedom of Speech
Chapter 4
Freedom of the Press
Chapter 5
The Right to Bear Arms
Chapter 6
Chapter 7
Trial by Jury
Chapter 8
Rights of the Accused
Chapter 9
Property Rights
Chapter 10
Cruel or Unusual Punishment
Chapter 11
Equal Protection of the Law
Chapter 12
The Right to Vote
—  C  H  A  P  T  E  R     11  —
Equal Protection of the Law
Nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.
— Fourteenth Amendment to the U.S. Constitution

Equal Protection of the Law

In the last half-century the constitutional command requiring equal protection of the laws for all people has been critical in the great social movements that have secured equal legal rights for people of color, women, and other groups, in the United States. In concept it is one of the noblest statements in the American Constitution, and in practice one of the more powerful. Without its authority it is unlikely that the United States would have achieved as much social progress as it has in the past 50 years, and many Americans might still be subjected to an institutionalized prejudice that made them second-class citizens, unable to vote or enjoy all rights. Yet although the Fourteenth Amendment became part of the Constitution in 1868, almost 90 years passed before this broad interpretation of the meaning of "equal protection" flowered.

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When Thomas Jefferson wrote in the Declaration of Independence that "all men are created equal," he did not mean social or economic egalitarianism. Rather he and others of the Founding generation believed that society by its nature could never be socially or economically homogeneous because men differ in their abilities and virtues. They did not want to level society, but rather give to each individual the opportunity to make the most of his abilities. In order for this opportunity to exist, all men (and at the time they were only concerned with men) had to stand before the law on an equal footing. There could not be one law for the rich and another for the poor, although the Founders ignored the fact that there was clearly one law for white people and another for slaves. A generation later, when Andrew Jackson's Democrats talked about equality, they meant the same thing — equality of opportunity based on equal treatment by the law.

Interestingly, no mention of equal opportunity can be found in either the original body of the Constitution or the Bill of Rights, nor was it deemed necessary until after the Civil War. When it became apparent that the defeated Confederate states had no intention of treating the newly freed slaves fairly, Congress responded by drafting and passing the Fourteenth Amendment to the Constitution, which forbade all states from denying any citizens not only due process of law but equal protection of those laws.

Justice Stanley Matthews, in Yick Wo v. Hopkins (1886)

The guaranty of equal protection of the laws is a pledge of the protection of equal laws.


Yet, from the very beginning the meaning of "equal protection" has at times been confusing, perhaps because the framers of the Fourteenth Amendment left us no explanation of exactly what they meant. On the other hand, the phrase could be read to mean that any law, no matter what common sense suggests, will be applied rigidly to all people. Such an extreme notion that laws cannot in any way, shape or manner discriminate among individuals or groups, can become silly. Passing a vision test as a requirement for securing a driver's license clearly discriminates against people who are blind or have sight impediments, yet this is an appropriate form of distinction.

Justice Anthony Kennedy, in Romer v. Evans (1996)

The Fourteenth Amendment's premise that no person shall be denied the equal protection of the law must coexist with the practical necessity that most legislation classifies [people] for one purpose or another, with resulting disadvantages to various groups or persons. . . . [The Court] has attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class [vulnerable group of citizens], we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.


All laws rely on some form of classification, and in many instances the laws only apply to certain people and not to others, and people may be treated differently under terms of the same law. A pension plan for government workers, for example, could certainly differentiate the amount of the pension depending upon rank, years of service, and salary. Both criminal and civil law impose punishments that are clearly differentiated depending upon a number of circumstances. Two women, for example, who are both convicted of the same crime, say murder, could receive vastly different sentences depending upon the circumstances surrounding each case. Just as we would not want the law blatantly to discriminate against people on the basis of such characteristics as age, height, gender, race, or religion, at the same time, we would not want a law that forced all people, regardless of conditions, to be treated exactly alike.

The origins of the Fourteenth Amendment, as a blueprint for the reconstruction of the Confederate states after the Civil War, informed its interpretation in the courts for many years. Despite its plain language that does not in fact refer to race, everyone understood that the Congress that proposed the amendment meant to protect the former slaves from discrimination, and nothing else. Justice Harlan's famous comment that the Constitution was color-blind captured perfectly what had been intended.

Justice John Marshall Harlan, dissenting in Plessy v. Ferguson (1896)

In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.


Justice Harlan's words expressed the ideal, if not always the reality of life for the former slaves and their children. The victorious northern Union, after wiping out slavery and writing noble sentiments into the Constitution, entered a period of economic expansion and industrial growth, and left the intractable problem of race to the South to resolve as it pleased. The result was more than six decades of the institutionalized discrimination against African-Americans known as "Jim Crow." The phrase "Jim Crow" was drawn from a stock character in "minstrel" (vaudeville) shows of the time, in which a white singer and actor would put on black makeup to look like a black man. Eventually, the phrase became widespread throughout the South to denote the segregation of the races.

Eventually segregation — legal separation of whites and blacks under state and local statute — would fall before the Equal Protection Clause, but in the meantime the clause practically disappeared from the constitutional lexicon. The courts, except in certain extreme cases of discrimination, refused to apply it broadly to race relations; and believing that limited purpose to be the sole justification for the Amendment as a whole, refused to utilize it in other instances either. By 1927, Justice Oliver Wendell Holmes could characterize the Equal Protection Clause as the "usual last resort of constitutional arguments," one that had little effect on the legal system as a whole.

All that began to change during World War II, and in one of those ironic aspects of history, new life crept back into the clause not in a case involving overt discrimination against people of color, but in one where chicken thieves were punished far more severely — by sterilization — than were criminals convicted of more genteel forms of thievery such as embezzling funds. Justice William O. Douglas asked the basic question: Was it fair that a strict law applied to all felons with the exception of wealthy embezzlers? The answer was clearly no. This gross disparity in penalties based on social class, he argued, violated the entire premise of equal protection. Douglas then went on to suggest that any law which impinged upon fundamental rights in a way to violate the Equal Protection Clause should be given strict judicial scrutiny by the courts. With this analysis in place, the stage was set for the great civil rights revolution in the decades immediately following the war.

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The Great Depression in America had created a new sense of what government should and should not do. The old notion, that the federal government should not interfere much in the economy, had been erased by the need of the government to act in the 1930s to mitigate the effects of a broken economy, and then in the 1940s to protect the country during the war. At the same time, a new generation of lawyers and civil rights activists began pondering what role the government — and especially the courts — might play in ending segregation. They took heart not only from some cases in which the Court struck down the exclusion of blacks from primary elections, but also from statements such as "All legal restrictions which curtail the civil rights of a single racial group are immediately suspect," a formulation used in more than one case.

When President Dwight Eisenhower named Earl Warren as chief justice of the United States in 1953, the stage was set for what has been termed the "egalitarian revolution." Warren and other members of the Court had no more interest than Jefferson and the Founders in eradicating differences that resulted from talent and hard work. They had no constitutional patience, however, for artificial barriers created by inequalities in the law or unequal treatment of certain groups.

The greatest statement of this principle came in what is without doubt the most important case the Supreme Court handed down in the 20th century, Brown v. Board of Education (1954). For more than a decade, the Court had slowly been chipping away at the edges of Jim Crow — which had resulted in many areas in the legal segregation of blacks from whites — recognizing that it had made a mistake in approving it at the end of the 19th century in a case known as Plessy v. Ferguson (1896). In Brown, it confronted segregation head on, and announced that this practice violated the constitutional mandate for equal protection.

Chief Justice Earl Warren, in Brown v. Board of Education (1954)

Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. . . . We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. . . . Such segregation is a denial of the equal protection of the laws.


When Warren announced that "separate educational facilities are inherently unequal," he seemed to be saying that racial segregation violated the constitutional mandate of "equal protection" at all times and in all places. In effect, the Court said that racial discrimination had been unconstitutional since 1868, and that cases to the contrary, such as Plessy, had been wrongly decided.

But Warren actually meant more, and it was this latter meaning that would inform so much of the interpretation of equal protection. Constitutional meaning changes with changing times and circumstances. At the beginning of the 19th century, Chief Justice John Marshall had lectured the American people to always remember that the Constitution is intended "to be adopted to the various crises of human affairs." This notion of a "living constitution" is not accepted by all scholars or judges, but the history of the Equal Protection Clause in the last half-century would indicate that its applications, and possibly its meaning as well, have changed over time.

Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (1989)

If Brown v. Board of Education reflected a change in the American civic culture, it also generated further changes. Brown was the Supreme Court's most important decision of the twentieth century. Today it stands as much more than a decision about schools, or even a decision about segregation. Brown is our leading authoritative symbol for the principle that the Constitution forbids a system of caste.


Race relations in the United States would never be the same after Brown. What had been a nascent drive to regain lost rights acquired new life, and grew into the civil rights movement of the 1950s and 1960s. When 200,000 people gathered at the Lincoln Memorial in August 1963 to rally for civil rights, they heard Martin Luther King, Jr.'s poetic statement that with equal protection afforded by law "one day on the red hills of Georgia, the sons of former slaves and the sons of former slave-owners will be able to sit together at the table of brotherhood."

Neither King nor President John F. Kennedy differed greatly in their interpretation of equal protection from that of Jefferson and Jackson before them — they simply wanted to expand it to other categories of people. They wanted all Americans to be treated according to individual merits, talents and virtues, and not according to accidents of skin coloring, gender, or religious belief. The Civil Rights Act of 1964, which Kennedy had proposed and which President Lyndon Baines Johnson signed into law, carried out the same theme. People are different, but all must be treated equally by the law.

What Brown and other cases, as well as the Civil Rights Act of 1964 and indeed the entire civil rights movement, said, in essence, was that without the equal protection of the laws, there can be no full citizenship for the minority, and without this, there can be only limited democracy. Perhaps, as some would argue, democracy makes rights possible; an equally valid argument can be made that individual rights make democracy work. At the core of the modern interpretation of the Equal Protection Clause is the belief that individuals, no matter what their race, gender, or religion, must be treated, certainly not as interchangeable cogs, but as individuals, each of whom is entitled to be treated without discrimination in accordance with his or her deserts with all other individuals before the law.

President John F. Kennedy, Address to Nation on Civil Rights (11 June 1963)

It ought to be possible for American students of any color to attend any public institution without having to be backed up by troops. It ought to be possible for American consumers of any color to receive equal service in places of public accommodation, such as hotels and restaurants and theaters and retail stores, without being forced to resort to demonstrations in the street, and it ought to be possible for American citizens of any color to register and to vote in a free election without interference or fear of reprisal. . . . In short, every American ought to have the right to be treated as he would wish to be treated, as one would wish his children to be treated. But this is not the case.

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An important by-product of Brown and the civil rights movement is that other groups also began calling for equality, of which the largest has been women. Despite the fact that women make up over one-half the population, in the early 1960s they still occupied a second-class status, especially in the workplace, barred by custom from certain jobs, excluded from certain professional schools, and getting paid far less than men for the same work. Efforts by women to gain equality by going to court had failed, and most men probably shared the view expressed by Justice Bradley in 1873; "The paramount destiny and mission of a woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator."

The women's movement had won its first major victory in 1964, when Title VII of the Civil Rights Acts prohibited employment discrimination on the basis of race, religion, national origin, and sex. Throughout the 1960s the media carried one story after another on the women's movement and its efforts to achieve sexual equality. In early 1972, Congress overwhelmingly approved a gender-based Equal Rights Amendment to the Constitution and sent it to the states (where, however, it failed of ratification), and the following year it passed the Equal Pay Act of 1973 mandating equal pay for equal work.

Justice William Brennan, Jr., in Frontiero v. Richardson (1973)

Our Nation has a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage. As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes. . . . It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in particular because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.


Taking its cue from the civil rights movement, women's groups went into court to attack one discriminatory law after another, and won in nearly all their cases. Like other sections of society, the courts grappled with the problem of trying to achieve equality before the law for both men and women, while recognizing that differences did exist that might justify the retention of some paternalistic measures even if they violated a strict equal protection standard. Where no valid reason justified discrimination, however, the Supreme Court moved to end it quickly.

In 1979, the Burger Court took decisive steps to make the Constitution as gender-neutral as it is supposed to be race-blind. The Court struck down a state law under which husbands but never wives might be required to pay alimony. Such classifications must fall, according to Justice Brennan, whenever they reflect the "baggage of sexual stereotypes," in this instance that men always have a duty to work and support their wives, whose responsibility is centered on the home. In another case, the Court struck down provisions of a federal program that allowed benefits to a family when an employed father lost his job, but not when a working mother became unemployed.

Yet for all the advances women made in the courtroom, they still have not achieved the complete statutory equality sought through the Equal Rights Amendment (ERA), which provided that "equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex," and authorized Congress to enact enforcing legislation. Congress had originally sent the amendment to the states in early 1972; within a few months about half the states had ratified it. Then opposition groups began to lobby intensively, and the amendment stalled. Proponents managed to get an extension of the ratification deadline from 1978 to the end of June 1982, but even then only 35 states approved, three short of the necessary margin.

Opposition to the amendment ranged from overt male chauvinism to claims that it would hurt women by vacating protective legislation; some opponents claimed that the ERA would require unisex bathrooms, while states' rights advocates feared that it would give the federal government still another club with which to bludgeon the states. Yet in constitutional terms, since the Fourteenth Amendment already guarantees "equal protection of the laws," it is unclear just how an equal rights amendment would affect existing law. It would, of course, raise gender to a classification equivalent to race and thus require the highest level of judicial scrutiny in cases where the law differentiated between men and women.

Justice Ruth Bader Ginsburg, in United States v. Virginia (1996)

Does Virginia's exclusion of women from the educational opportunities provided by Virginia Military Institute — extraordinary opportunities for military training and civilian leadership development — deny to women "capable of all the individual activities required of VMI cadets" . . . the equal protection of the law guaranteed by the Fourteenth Amendment? . . . However liberally [VMI's] plan serves the State's sons, it makes no provision whatever for her daughters. That is not equal protection.


But in practical terms the courts have already achieved much of what women sought in the ERA. The Equal Protection Clause of the Fourteenth Amendment does not use the word "man" but "person," and a strict reading of that phrase by the courts has already struck down the most blatant forms of legally sanctioned sex discrimination in the United States. The situation for women is in many ways like that of people of color — state-sponsored discrimination cannot stand. The law, however, is powerless to change societal attitudes, and while the old attitudes that existed prior to the civil rights and women's movements have been greatly reduced, powerful vestiges remain.

Although women and people of color have been the most significant beneficiaries of the new interpretation of the Equal Protection Clause, other groups have also demanded that they, too, be given constitutional equality. Disabled persons, homosexuals, and others have sought, with varying degrees of success, to secure laws that would protect them from discrimination. The Americans with Disabilities Act (1992) opened up vast possibilities for people with physical or mental impairments to be full members of the polity. While homosexual groups have fallen far short of the goals they seek, such as validation of same-sex marriage, the courts and many state legislatures have consistently held that there can be no legal discrimination aimed at gays and lesbians as a group, and slowly they too are beginning to be more accepted into the social mainstream.

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If the sole implication of the Equal Protection Clause was merely to ensure that the government enforced all laws fairly, and passed no discriminatory measures, then while it would still be important, the clause would not have had the impact that it did in the last half-century. What the courts and legislatures have understood is that equal protection is a root concept of citizenship, much like the First Amendment's protection of free speech. Just as a person cannot fulfill the duties of a citizen without the ability to speak freely and hear different viewpoints, so one cannot be a full member of the community if subject to discriminatory classification.

An essential component of "equal citizenship" is respect, the recognition by one person of another's parity in the social contract and in public affairs. Any irrational form of stigmatization, be it based on race, gender, or religion, automatically assigns individuals who have that trait to an inferior category. Tied in with this is the value to the polity of participation. How can the majority take seriously efforts by the minority to participate in civic life if that minority has been branded as invariably inferior? Finally, how can the minority be expected to behave responsibly if its members are consigned to a category that implies they cannot do so?

These three values of equal citizenship — respect, participation, and responsibility — are the characteristics one expects of all citizens in a democratic society. It is, of course, impossible to legislate social or economic equality; few people would, in any case, want that. But the courts and the legislatures have attempted to ensure that at least in three areas deemed "fundamental" no person or group of persons will face discrimination.

First, there is voting rights, one of the great privileges as well as responsibilities of a democratic society. A free and fair election is the hallmark of democracy, and the ability to cast one's vote has both symbolic as well as substantive importance. It is how we choose our leaders and make important public policy decisions, and as the presidential election of 2000 demonstrated, even a small number of votes can affect the results. To deny anyone or any group the ballot lessens its importance, for the individual and for the community. Thus even before Brown the courts began attacking devices that kept minorities from voting.

A second area, access to the courts, is similar to voting in that it gives a person the chance to be heard. We have already discussed in the chapters on fair trial and rights of the accused why a democratic society goes to such lengths to ensure the fairness of the criminal justice system. That integrity is undermined if certain groups are prevented from that access, if blacks or women are kept off jury rolls, if people are punished simply because of the color of their skin. Many but not all of the cases that have helped establish the rights of accused persons have involved defendants of color, and the message that the courts have sent is clear: Equal protection means fair treatment in both the criminal and the civil court system.

A third area deemed fundamental has involved marriage and family, which in a free society are also tied closely to issues of respect, responsibility, and participation. Marriage and having children are integral to one's status, social self-concept, and legal responsibilities. These are also viewed as the most intimate of personal decisions, ones in which the state should have little or no involvement. Courts have struck down not only laws that involved race as a classification, but also wealth. A person cannot be denied access to marriage or divorce because he or she is poor. As early as the 1920s, the Supreme Court had begun to define areas of family responsibility and choice immune from state interference; in the 1960s these areas received further protection through the new interpretation of the Equal Protection Clause.

Chief Justice Earl Warren, in Loving v. Virginia (1967)

There is patently no legitimate over-riding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.


Does this mean that the state can never interfere in these fundamental areas? The answer is clearly that it can, but only when there are overriding state interests involved, and even then, the government must take steps to ensure that its regulations do not weigh unfairly on any particular group. So, for example, the state can set minimal age requirements for voting or getting a marriage license, but these must apply to all groups, not just minorities. Jury rolls may be regulated, but they are normally drawn from voting lists; if the voting lists are tainted by the purposeful exclusion of any group, then so is the jury panel. Equal protection of the laws means that one has both the right and the responsibility to vote and to serve on juries; due process of the law means that a defendant is entitled to a jury of peers, so that if he is a person of color, then the jury rolls must accurately reflect the community composition.

Equal protection has also come to mean that all persons must be free to participate in the community's public life, depending on their inclination and financial means, even those aspects that might normally be seen as belonging to private persons. The Civil Rights Act of 1964 made it illegal to discriminate on the basis of race, gender, or ethnicity in "public accommodations," such as restaurants, hotels, and theaters, even though these businesses might be owned privately. Prior to 1964, prevailing law held that the owner of a business had the right to serve whom he chose, and could therefore exclude blacks, women, Catholics, or other groups. The Fourteenth Amendment directs that "no state" can discriminate, and for many years it was thought that private discrimination could not be reached by public law. In the 1960s, both the courts and Congress recognized that to be denied access to such public accommodations may not have violated the letter of the Fourteenth Amendment, but the notion that somehow all people could partake of equal citizenship without convenient access to travel, lodging, dining, and culture certainly flouted the spirit of it.

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In the late 19th century, the English philosopher Jeremy Bentham, in discussing the abstraction of equality, believed it to be insatiable, and asked where it would all end. Would proponents of equality not rest until all persons stood at the same social, economic, and political level?

That has never been the intent of the Fourteenth Amendment's Equal Protection Clause. To many people the United States seems to be the most egalitarian of all societies. French writer Simone de Beauvoir declared that "the rich American has no grandeur; the poor man no servility; human relations in daily life are on a footing of equality." Yet the United States has never been a leveler society; neither the well-to-do nor the poor have ever sought a one-size-fits-all status. Rather, the emphasis has been on opportunity — the ability of those with talent and industry to succeed-and on equality before the law. All men and women, rich and poor, white or colored, Anglo-Saxon or Latino, are to have the equal protection of equal laws. These are rights they enjoy as American citizens, but underlying the notion of equal rights is that of equal citizenship, a notion that embodies not only rights but responsibilities as well.

For further reading:

Alexander M. Bickel, The Supreme Court and the Idea of Progress (New York: Harper & Row, 1970).

Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (New Haven: Yale University Press, 1989).

Susan Gluck Mezey, In Pursuit of Equality: Women, Public Policy, and the Federal Courts (New York: St. Martin's Press, 1992).

Donald G. Nieman, Promises to Keep: African-Americans and the Constitutional Order, 1776 to the Present (New York: Oxford University Press, 1991).

Paul M. Sniderman et al., The Clash of Rights: Liberty, Equality, and Legitimacy in a Pluralist Democracy (New Haven: Yale University Press, 1996).

Chapter 12: The Right to Vote »

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