Equal Protection and Rational Basis Review Generally

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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.

Every draft leading up to the final version of Section 1 of the Fourteenth Amendment contained a guarantee of equal protection of the laws.1 The Amendment’s sponsors aimed to provide a firm constitutional basis for already-enacted civil rights legislation2 and to ensure that equal protection could not be repealed by a simple majority in a future Congress.3 There were, however, conflicting interpretations of the phrase “equal protection” among sponsors and supporters, and the legislative history does little to clarify whether any sort of consensus was accomplished, and if so, what it was.4 Although the Court early recognized that African Americans were the primary intended beneficiaries of the new constitutional protections thus adopted,5 the Amendment’s language is not limited to any one racial or other group. Though efforts to argue for an expansive interpretation met with little initial success,6 the equal protection standard ultimately came to apply to all classifications by legislative and other official bodies. Now, the Equal Protection Clause looms large in the fields of civil rights and fundamental liberties with regard to differential treatment of persons and classes.

While the traditional standard of review for equal protection challenges to government classifications developed largely, though not entirely, in the context of economic regulation,7 it appears in many other contexts as well,8 including so-called “class-of-one” challenges to the government’s alleged mistreatment of an individual.9 The mere fact of classification will not void legislation,10 because, in exercising its powers, a legislature has considerable discretion in recognizing differences between and among persons and situations.11 The Court has observed: “[S]tatutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution.” 12

To determine whether a classification is permissible or invidious courts must first identify the characteristic used to classify.13

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, 102 Stat. 1620 (codified at 42 U.S.C. § 3604). For most classifications that do not involve an inherently suspect characteristic (such as sex or race) or a fundamental right (such as a personal constitutional right), the Court applies rational basis review.14 This standard generally differentiates between permissible and impermissible classifications by asking whether “the statute is rationally related to a legitimate state interest.” 15 Applying a presumption that legislation is valid, the Court has held that “[w]hen social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude.” 16 Recognizing that a classification may be overinclusive or underinclusive and pass rational basis review, the Court has stated: “If the classification has some reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality.” 17

1: The story is recounted in Joseph B. James, The Framing of the Fourteenth Amendment (1956). See also The Journal of the Joint Committee of Fifteen on Reconstruction (Benjamin B. Kendrick ed., 1914). The floor debates are collected in 1 Statutory History of the United States: Civil Rights 181 (Bernard Schwartz ed., 1970).
2: Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (codified as amended at 42 U.S.C. §§ 1981, 1982). See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422–37 (1968).
3: Much of the legislation which survived challenge in the courts was repealed in 1894 and 1909. 28 Stat. 36 (1894); 35 Stat. 1088 (1909). See Robert K. Carr, Federal Protection of Civil Rights: Quest for a Sword 45–46 (1947).
4: Jacobus tenBroek, Equal Under Law (rev. ed., 1965); John P. Frank & Robert F. Munro, The Original Understanding of ‘Equal Protection of the Laws', 50 Colum. L. Rev. 131 (1950); Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1 (1955); see also the essays collected in Howard J. Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism (1968). In calling for reargument in Brown v. Bd. of Educ., the Court asked for and received extensive analysis of the legislative history of the Amendment with no conclusive results. 347 U.S. 483, 489–90 (1954).
5: Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873).
6: In Buck v. Bell, Justice Oliver Wendell Holmes characterized the Equal Protection Clause as “the usual last resort of constitutional arguments.” 274 U.S. 200, 208 (1927).
7: See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discrimination against Chinese on the West Coast).
8: See, e.g., Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide prohibition does not violate Equal Protection Clause by distinguishing between terminally ill patients on life-support systems who are allowed to direct the removal of such systems and patients who are not on life support systems and are not allowed to hasten death by self-administering prescribed drugs).
9: The Supreme Court has recognized successful equal protection claims brought by a class-of-one, where a plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for that difference. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (village’s demand for an easement as a condition of connecting the plaintiff’s property to the municipal water supply was irrational and wholly arbitrary). However, the class-of-one theory, which applies with respect to legislative and regulatory action, does not apply in the public employment context. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 595 (2008) (allegation that plaintiff was fired not because she was a member of an identified class but simply for “arbitrary, vindictive, and malicious reasons” does not state an equal protection claim). In Engquist, the Court noted that “the government as employer indeed has far broader powers than does the government as sovereign,” id. at 598 (quoting Waters v. Churchill, 511 U.S. 661, 671 (1994), and that it is a “common-sense realization” that government offices could not function if every employment decision became a constitutional matter. Id. at 599, 607.
10: Atchison, T. & Santa Fe R.R. v. Matthews, 174 U.S. 96, 106 (1899). From the same period, see also Orient Ins. Co. v. Daggs, 172 U.S. 557 (1899); Bachtel v. Wilson, 204 U.S. 36 (1907); Watson v. Maryland, 218 U.S. 173 (1910). For later cases, see Kotch v. Bd. of River Port Pilot Comm’rs, 330 U.S. 552 (1947); Goesaert v. Cleary, 335 U.S. 464 (1948), overruled by Craig v. Boren, 429 U.S. 190, 210 n.23 (1976); McGowan v. Maryland, 366 U.S. 420 (1961); Schilb v. Kuebel, 404 U.S. 357 (1971); U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980); Schweiker v. Wilson, 450 U.S. 221 (1981).
11: Barrett v. Indiana, 229 U.S. 26 (1913).
12: Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955).
13: City of Cleburne. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439–42 (1985), superseded by statute, Fair Housing Amendments Act of 1988, Pub. L. No.
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, 102 Stat. 1620 (codified at 42 U.S.C. § 3604).
14: Id. at 440.
15: Id. (holding disability status is not a suspect classification).
16: Id.
17: City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989) (internal quotation marks omitted).