by Jery Payne
The 14th amendment to the United States constitution forbids states from denying “to any person within its jurisdiction the equal protection of the laws.” That seems simple enough. Right?
I once worked at a hospital that used a surgeon who hadn’t graduated from medical school. He had forged his diploma to get licensed. This didn’t stop him from performing open-heart surgery for several years. When this was finally exposed, it was a big scandal. He fled to avoid jail, but maybe he should have fought the law under the Equal Protection Clause. The cardiologists, after all, agreed that he was the best in the hospital. In this situation, the law didn’t treat him equally with medical-school graduates.
The more you think about it, the more you realize that no law actually treats people equally. The very point of most laws is to help some and punish others. The law allows you to take a walk or a vacation, but it keeps murderers in a small cage under constant guard. That’s pretty unequal.
If the point of the law is to treat people unequally, what does equal protection mean? The answer developed by the courts may surprise you.
We treat murderers unequally because we are trying to stop people from being killed. We treat medical-school graduates differently because we want people to get good medical care, and medical school improves a person’s ability to give good medical care. What if the Equal Protection Clause doesn’t apply to these laws because they are logical?
The Supreme Court has struck down the following:
- A law forbidding a minority from serving on a jury. Serving on a jury is a good thing, and your race doesn’t mean you can’t do a good job.
- A law forbidding a minority from attending law school. Attending law school doesn’t hurt anything, and your race doesn’t mean you can’t do well.
- A law forbidding races from mixing in school. Mixing races doesn’t hurt anything. In the last two examples, the goal was okay, but the trait didn’t actually affect the goal. In this case, the goal doesn’t make any sense.
- A law setting the drinking age three years higher for men than women. Being intoxicated may lead to harm, but a man doesn’t get intoxicated easier or worse than a woman.
So the answer seems to be whether the grouping leads to a good or bad result. This has two parts: First, the law needs to be trying to do something that the court believes is within the state’s powers. That’s a pretty fuzzy standard. But in practice, this seems to boil down to whether the state is trying to do something for the good of its citizens. “We like it better that way” probably won’t work — any knucklehead could say that about anything — but “we don’t want people to die” does work. That’s legitimate. Second, the act or trait needs to affect the goal. That’s also a pretty fuzzy standard. One thing may lead to another most of the time, one-half of the time, or one-seventh of the time or by one, two, or seven steps. And opinions may vary, which is why courts are skittish about this way of thinking: It means second guessing lawmakers.
But they haven’t found a better way to think about it, so courts have given in and come up with three ways to judge these cases.
The first, most common, and most deferential way is “rational basis”. Here the courts are trying not to second guess lawmakers. This means that the law is okay if the act or trait has “a rational basis” related to a “legitimate state purpose.” We’ve already talked about “legitimate state purpose”: It means the state is trying to do something good, which is true most of the time. “Rational basis” means that a reasonable person could think the act or trait affects the goal. In other words, if the law isn’t goofy, the court will probably uphold it. A few laws have been struck down under this test — in Romer v. Evans, for example, a provision that forbade legislation based on homosexual status was struck down. But laws are rarely struck down under rational basis analysis.
But if the law interferes with fundamental rights or makes decisions based on ethnicity or nationality, the court will wrinkle its nose and squint its eyes — like my mother used to do when I made excuses. Like my mother, the court is going to look real closely at the state’s reasons. The Supreme Court calls this “strict scrutiny.” So if a law interferes with fundamental rights or makes decisions based on ethnicity or nationality, the state had better have a darned good reason.
Under the strict scrutiny test, the state must show the grouping is “necessary” and “narrowly tailored” to meet a “compelling interest.” “Necessary” means the goal can’t be reached another way; “narrowly tailored” means the law doesn’t do more than needs to be done to reach the goal; and “compelling interest” means the state had better be doing something darned important. Like my mother, the court intends to be strict. A few laws have survived strict scrutiny — Grutter v. Bollinger, for example, where the court upheld a law using race as a factor in law-school admissions. But the court will strike down most laws that interfere with a right or use the traits of ethnicity or nationality.
Courts also use a middle ground known as “intermediate scrutiny.” If the trait is gender or a child’s status, the court will merely raise an eyebrow — it will require a decent justification, but it’s not going to treat the law like my mother did an excuse. The state must show that the trait is “substantially related to an important governmental objective.” In other words, the court is going to look closely, but it understands that sometimes these traits matter. For example, it doesn’t make any sense to pay for men to get screened for ovarian cancer. But the court won’t accept a law setting a higher drinking age based on gender. So a state should be careful when passing a law about gender and child status.
The Equal Protection Clause seems a bit crazy. It seems to go against the notion of a law. It’s hard to understand; it’s hard to apply. It puts courts in an awkward position with respect to lawmakers. But it’s in the constitution because we decided we weren’t going to put up with a lot of nonsense arising from slavery. And the Equal Protection Clause may just be the help a person needs from a state’s shenanigans.