Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause. John Armor Bingham ( January 21, 1815 &ndash March 19, 1900) was a Republican congressman from Ohio, America Ohio ( is a Midwestern state of the United States. As part of the Great Lakes region, Ohio has long been a cultural and geographical crossroads

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person within its jurisdiction the equal protection of the laws. The Fourteenth Amendment ( Amendment XIV) to the United States Constitution is one of the post- Civil War Reconstruction Amendments, first The Constitution of the United States of America is the supreme Law of the United States. A US state is any one of the fifty subnational entities of the United States of America that share Sovereignty with the federal government In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society " The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states. The United States of America —commonly referred to as the The quotation "All men are created equal" is arguably the best-known phrase in any of America 's political documents as the idea it expresses is generally considered

More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. The federal government of the United States is the central United States Governmental body established by the United States Constitution. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state leaders, and governments, even including some rights that arguably were not protected from abridgement by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate; and the story of the Equal Protection Clause is the gradual explication of its meaning.

One of the main limitations in the Equal Protection Clause is that it limits only the powers of government bodies, and not the private parties on whom it confers equal protection. This limitation has existed since 1883 and has not been overturned. However, since the 1960s, Congress has passed most civil rights legislation under its Commerce Clause power. Article 1 Section 8 Clause 3 of the United States Constitution, known as the Commerce Clause, states that Congress has the power to regulate commerce with foreign

Background

The words inscribed above the entrance to the U.S. Supreme Court are: "Equal justice under law"

The Fourteenth Amendment was enacted in 1868, shortly after the Union victory in the American Civil War. The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. Equal Justice Under Law is a phrase engraved on the front of the United States Supreme Court building in Washington D Causes of the war See also Origins of the American Civil War, Timeline of events leading to the American Civil War The coexistence of a slave-owning South Though the Thirteenth Amendment, which was proposed by Congress and ratified by the states in 1865, had abolished slavery, many ex-Confederate states adopted Black Codes following the war. The Thirteenth Amendment to the United States Constitution officially abolished and continues to prohibit Slavery, and with limited exceptions such as those Article Five of the United States Constitution describes the process whereby the Constitution may be altered Abolitionism was a political movement of the 18th and 19th century which sought to make Slavery illegal particularly in the United States and British West Indies As a social-economic system slavery is a legal institution under which a Person (called "a slave" is compelled to work for another The Confederate States of America (also called the Confederacy, the Confederate States, and CSA) formed as the government set up from 1861

These laws severely restricted the power of blacks to hold property and form legally enforceable contracts. Property is any physical or virtual entity that is owned by an individual A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law They also created harsher criminal penalties for blacks than for whites. ^[1]

In response to the Black Codes, Congress enacted the Civil Rights Act of 1866, which provided that all those born in the United States were citizens of the United States (this provision was meant to overturn the Supreme Court's decision in Dred Scott v. Sandford), and required that "citizens of every race and color . Contents of Act & Controversy Throughout American history several pieces of legislation have been called the Civil Rights Act - this was the third such act Dred Scott v Sandford —whether or not they were slaves—could never be Citizens of the United States, and that the United States Congress The term race or racial group usually refers to the concept of categorizing Humans into Populations or groups on the basis of various sets . . [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens. "^[2] Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment. The effort was led by the Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens. The Radical Republicans is a term applied to a loose faction of American politicians within the Republican party from about 1854 (before the American Civil War John Armor Bingham ( January 21, 1815 &ndash March 19, 1900) was a Republican congressman from Ohio, America Charles Sumner (January 6 1811 &ndash March 11 1874 was an American politician and statesman from Massachusetts. Thaddeus Stevens ( April 4, 1792 – August 11, 1868) of Pennsylvania, was a Republican leader and one of the most powerful The most important among these, however, was Bingham, a Congressman from Ohio, who drafted the language of the Equal Protection Clause. Ohio ( is a Midwestern state of the United States. As part of the Great Lakes region, Ohio has long been a cultural and geographical crossroads

The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the … Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. The Southern United States &mdashcommonly referred to as the American South, Dixie, or simply the South &mdashconstitutes a large distinctive It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated, to be passed by Congress and proposed to the states. A Rump legislature is a Legislature formed of part usually a minority of the legislators originally elected or appointed to office Its ratification by the former Confederate states was made a condition of their reacceptance into the Union. ^[3]

By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing the same restrictions on the federal government. The Fifth Amendment ( Amendment V) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure Due process (more fully due process of law) is the principle that a person has a right to receive notice and be heard in an orderly proceeding in order to protect his or her Bolling v Sharpe, 347 US 497 ( 1954) was an influential United States Supreme Court Landmark case dealing with civil rights concerning

Reconstruction-era interpretation and the Plessy decision

The Court that decided Plessy

The first truly landmark equal protection decision by the Supreme Court was Strauder v. West Virginia (1880), soon after the end of Reconstruction. Strauder v West Virginia,, was a United States Supreme Court case about Racial discrimination. A black man, named Jeff Katz, convicted of murder by an all-white jury challenged a West Virginia statute excluding blacks from serving on juries. A jury a sworn body of persons convened to render a rational, impartial Verdict (a finding of fact on a question officially submitted to them West Virginia ( is a state in the Appalachian Upland South, and Mid-Atlantic regions of the United States, bordered by A statute is a formal written enactment of a Legislative authority that governs a Country, State, City, or County. The Court asserted that the purpose of the Clause was

to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.

Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of [the defendant's] race. "

The next important postwar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Civil Rights Cases, 109 US 3 ( 1883) were a group of five similar cases consolidated into one issue for the United States Supreme Court The Civil Rights Act of 1875 ( was United States federal law proposed by Republican Senator Charles Sumner and Republican Congressman Benjamin F The Act provided that all persons should have "full and equal enjoyment of . . . inns, public conveyances on land or water, theatres, and other places of public amusement. A common carrier is a business that transports people goods or services and offers its services to the general public under license or authority provided by a regulatory body " In its opinion, the Court promulgated what has since become known as the "State Action Doctrine," which limits the guarantees of the equal protection clause only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong," provided, of course, that the state's law saw it as a wrong. Justice John Marshall Harlan dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States This is about the pre-World-War-I US Supreme Court justice for his grandson the mid-20th century holder of the same position see John Marshall Harlan II. "

Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment," and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state.

A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins (1886). Yick Wo v Hopkins 118 US 356 (1886 was the first case where the United States Supreme Court ruled that a law that was Race-neutral on its ^[4] He said: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. " Thus, the Clause would not be limited to discrimination against African Americans, nor would it be limited to equal enforcement of existing laws.

In its most contentious post-war interpretation of the equal protection clause, Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana Jim Crow law that required the segregation of blacks and whites on railroads and mandated separate railway cars for members of the two races. The State of Louisiana ( or, État de Louisiane, pronounced) is a state located in the southern region of the United States of America The Jim Crow laws were state and local laws enacted primarily but not exclusively in the Southern and border states of the United States between 1876 and 1965 "Railroad" and "Railway" both redirect here For other uses see Railroad (disambiguation. ^[5] The Court, speaking through Justice Henry B. Brown, ruled that the equal protection clause had been intended to defend equality in civil rights, not equality in social arrangements. Henry Billings Brown (born South Lee Massachusetts, March 2, 1836; died Bronxville New York, September 4, 1913) was an A convention is a set of agreed, stipulated or generally accepted Standards norms social norms or criteria, often taking the form of All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people. Social norms have been defined as "the rules that a group uses for appropriate and inappropriate values beliefs attitudes and behaviors The word tradition comes from the Latin traditionem acc of traditio which means "a giving up delivering up surrendering" and is used in a number of "

Justice Harlan again dissented. "Every one knows," he wrote,

that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. . . . [I]n 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. Castes are Hereditary systems of occupation, Endogamy, social culture, Social class, and Political power. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. "^[6]

Since Brown v. Board of Education (1954), Justice Harlan's dissent in Plessy has been vindicated as a matter of legal doctrine, and the clause has been interpreted as imposing a general restraint on the government's power to discriminate against people based on their membership in certain classes, including those based on race and sex (see below). Brown v Board of Education of Topeka, 347 US 483 (1954 was a Landmark decision of the United States Supreme Court, which overturned earlier Unlike most discrimination policies discrimination between, which is the discernment of qualities and recognition of the differences focused here discrimination against is

It was also in the post-Civil-War era that the Supreme Court first decided that corporations were "persons" within the meaning of the equal protection clause. ^[7] However, the legal concept of corporate personhood predates the Fourteenth Amendment. The corporate personhood debate refers to the controversy (primarily in the United States) over the question of what subset of rights afforded under the law to Natural ^[8] In the late nineteenth and early twentieth centuries, the Clause was used to strike down numerous statutes applying to corporations. Since the New Deal, however, such invalidations have been rare. ^[9]

Between Plessy and Brown

While the Plessy majority's interpretation of the clause stood until Brown, the holding of Brown was prefigured, to some extent, by several earlier cases.

The first of these was Missouri ex rel. Gaines v. Canada (1938). Missouri ex rel Gaines v Canada, 305 US 337 (1938 was a United States Supreme Court decision holding that states that provide a school to white students Lloyd Gaines was a black student at Lincoln University, one of the historically black colleges in Missouri. Lloyd Lionel Gaines (1913?&mdashdisappeared March 19, 1939) was the central figure of one of the most important court cases in the U Historically black colleges and universities ( HBCUs) are institutions of Higher education in the United States that were established before 1964 with the intention Missouri ( or) is a state in the Midwestern region of the United States bordered by Iowa, Illinois, Kentucky, Tennessee He applied for admission to the law school at the all-white University of Missouri, since Lincoln did not have a law school, but was denied admission due solely to his race. The University of Missouri (also known as the University of Missouri–Columbia, Mizzou, or MU) is a public land-grant and research The Supreme Court, applying the separate-but-equal principle of Plessy, held that a State offering a legal education to whites but not to blacks violated the Equal Protection Clause.

Smith v. Allwright (1944) and Shelley v. Kraemer (1948), though not dealing with education, indicated the Court's increased willingness to find racial discrimination illegal. Smith v Allwright, 321 US 649 ( 1944) was an important decision of the United States Supreme Court with regard to Voting rights Shelley v Kraemer, 334 US 1, ( 1948) is a United States Supreme Court decision involving the enforceability of Restrictive covenants Smith declared that the Democratic primary in Texas, in which voting was restricted to whites alone, was unconstitutional, partly on equal protection grounds. The Democratic Party is one of two major Political parties in the United States, the other being the Republican Party. A primary election ( nominating primary) also referred to simply as a primary, is an election in which voters in a Jurisdiction select candidates Texas ( is a state geographically located in the South Central United States and is also known as the Lone Star State. Shelley concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could: after all, the Supreme Court reasoned, courts were part of the state.

More important, however, were the companion cases Sweatt v. Painter and McLaurin v. Oklahoma State Regents, both decided in 1950. Sweatt v Painter,, was a US Supreme Court case that successfully challenged the " Separate but equal " doctrine of Racial segregation McLaurin v Oklahoma State Regents, 339 US 637 ( 1950) was a United States Supreme Court case that reversed a lower court decision upholding In McLaurin, the University of Oklahoma had admitted McLaurin, an African-American, but had restricted his activities there: he had to sit apart from the rest of the students in the classrooms and library, and could eat in the cafeteria only at a designated table. University of Oklahoma, abbreviated OU, is a Coeducational public Research university located in the U A unanimous Court, through Chief Justice Fred M. Vinson, said that Oklahoma had deprived McLaurin of the equal protection of the laws:

There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar. The Chief Justice of the United States is the head of the judicial branch of the government of the United States, and presides over the U Frederick Moore Vinson ( January 22 1890 – September 8 1953) served the United States in all three branches of government

The present situation, Vinson said, was the former.

In Sweatt, the Court considered the constitutionality of Texas's state system of law schools, which educated blacks and whites at separate institutions. A law school (also known as a school of law or college of law) is an institution specializing in Legal education. The Court (again through Chief Justice Vinson, and again with no dissenters) invalidated the school system—not because it separated students, but rather because the separate facilities were not equal. They lacked "substantial equality in the educational opportunities" offered to their students.

All of these cases, including Brown, were litigated by the National Association for the Advancement of Colored People. The National Association for the Advancement of Colored People, usually abbreviated as NAACP, is one of the oldest and most influential Civil rights organizations It was Charles Hamilton Houston, a Harvard Law School graduate and a law professor at Howard University, who in the 1930s first began to challenge racial discrimination in the federal courts. Charles Hamilton Houston ( September 3, 1895 – April 22, 1950) was an African American Lawyer, Dean of Howard University Harvard Law School (also known as Harvard Law or HLS) is one of the professional Graduate schools of Harvard University. Howard University is a private, Coeducational Nonsectarian University located in Washington D Thurgood Marshall, a former student of Houston's and the future Solicitor General and Associate Justice of the Supreme Court, joined him. Thurgood Marshall ( July 2, 1908 – January 24, 1993) was an American Jurist and the first African American The United States Solicitor General is the individual appointed to argue for the Government of the United States in front of the Supreme Court of the United States Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States Both men were extraordinarily skilled appellate advocates, but part of their shrewdness lay in their careful choice of which cases to litigate—of which situations would be the best legal proving grounds for their cause. Court of Appeal, Court of Appeals, and Appellate Division redirect here for a list of specific courts using those titles see Court of Appeal ^[10]

Brown and its consequences

When Earl Warren became Chief Justice in 1953, Brown had already come before the Court. Earl Warren ( March 19, 1891 July 9, 1974) was the 14th Chief Justice of the United States and the only person ever elected thrice While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional. ^[11] In that opinion, Warren wrote:

To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . . . We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

The Court then set the case for re-argument on the question of what the solution would be. In Brown II, decided the next year, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be so as well. Brown v Board of Education of Topeka, 347 US 483 (1954 was a Landmark decision of the United States Supreme Court, which overturned earlier Thus the court devolved authority to local school boards and to the trial courts that had originally heard the cases. A board of education or a school Board or school committee is the title of the Board of directors of a school local School district The United States district courts are the general Trial courts of the United States federal court system. (Brown was actually a consolidation of four different cases from four different states. ) The trial courts and localities were told to desegregate with "all deliberate speed".

Partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance" in the South to the desegregation decision, integration did not begin in any significant way until the mid-1960s and then only to a small degree. Massive Resistance was a policy declared by US Senator Harry F Racial integration, or simply integration includes Desegregation (the process of ending systematic Racial segregation) In fact, much of the integration in the 1960s happened in response not to Brown but to the Civil Rights Act of 1964. Origins The bill was introduced by President John F Kennedy in his civil rights speech of June 11 1963, in which he asked for legislation "giving The Supreme Court intervened a handful of times in the late 1950s and early 1960s, but its next major desegregation decision was Green v. School Board of New Kent County (1968), in which Justice William J. Brennan, writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. William Joseph Brennan Jr ( April 25, 1906 &ndash July 24, 1997) was an Associate Justice of the Supreme Court of the This was a significant act; freedom-of-choice plans had been very common responses to Brown. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks rarely attended white-identified schools.

In response to Green, many Southern districts replaced freedom-of-choice with geographically based schooling plans; but because residential segregation was widespread, this had little effect, either. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of Education approved busing as a remedy to segregation; three years later, though, in the case of Milliken v. Bradley (1974), it set aside a lower court order that had required the busing of students between districts, instead of merely within a district. Swann v Charlotte-Mecklenburg Board of Education, 402 US 1 ( 1971) was an important United States Supreme Court case dealing with the Milliken v Bradley, 418 US 717 ( 1974) was an important United States Supreme Court case dealing with the planned Desegregation busing School districts are a form of Special-purpose district which serves to operate the local public primary and secondary schools Milliken basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the '50s and '60s. ^[12] American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, to Congressional action or to societal change, the percentage of black students attending school districts a majority of whose students were black decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s. ^[13]

There are, very broadly speaking, two ways to explain America's marked lack of success in school integration in the five decades since Brown. One way, sometimes voiced by political conservatives, argues that Brown's relative failure is due to the inherent limitations of law and the courts, which simply do not have the institutional competence to supervise the desegregation of whole school districts. Conservatism in the United States includes a variety of political ideologies including Fiscal conservatism, Supply-side economics, Social conservatism Moreover, the federal government's, and especially the Supreme Court's, hubris actually provoked the resistance of locals, since education in the United States is traditionally a matter for local control. The other way to explain what has happened since Brown often has political liberals as its proponents; it argues that the Court's decree in Brown II was insufficiently rigorous to force segregated localities into action, and that real success began only after the other two branches of the federal government got involved—the Executive Branch (under Kennedy and Johnson) by encouraging the Department of Justice to pursue judicial remedies against resistant school districts, and Congress by passing the Civil Rights Act of 1964 and the Civil Rights Act of 1968. Liberalism in the United States is a broad political and philosophical mindset favoring individual Liberty, and opposing restrictions on liberty whether they come from John Fitzgerald "Jack" Kennedy (May 29 1917&ndashNovember 22 1963 often referred to by his initials JFK, was the thirty-fifth President of For animal rights group see Justice Department (JD The United States Department of Justice ( DOJ) is a Cabinet department Types of banned discrimination The Civil Rights Act of 1968 prohibited the following forms of discrimination 1 ^[14] Liberals also point out that Richard Nixon's "southern strategy" was premised on a tacit support of segregation that continued when Nixon came to office, so that after 1968 the Executive was no longer behind the Court's constitutional commitments. In American politics, the Southern strategy refers to a Republican method of carrying Southern states in the latter decades of the 20th century and first decade of ^[15] Moreover, some, such as Professor Erwin Chemerinsky, argue that courts may have had sufficient ability to ensure widespread integration but simply were not allowed enough time to perform this role, since Milliken v. Erwin Chemerinsky (born May 14, 1953) is an American lawyer and Law professor. Bradley, in 1974—barely a decade since desegregation began in earnest in the South—severely curtained the thoroughgoing methods (e. g. busing) which might have achieved the goal of desegregation.

Carolene Products and the various levels of Equal Protection scrutiny

Harlan Stone, author of Carolene Products

Despite the undoubted importance of Brown, much of modern equal protection jurisprudence stems from footnote four of United States v. Carolene Products Co. (1938), a Commerce Clause and substantive due process case. United States v Carolene Products Company, 304 US 144 ( 1938) was an April 25, 1938 decision by the United States Supreme United States v Carolene Products Company, 304 US 144 ( 1938) was an April 25, 1938 decision by the United States Supreme Article 1 Section 8 Clause 3 of the United States Constitution, known as the Commerce Clause, states that Congress has the power to regulate commerce with foreign Due process (more fully due process of law) is the principle that a person has a right to receive notice and be heard in an orderly proceeding in order to protect his or her In 1937, the Court (in what was called the "switch in time that saved nine") had loosened its rules for deciding whether Congress could regulate certain commercial activities. “The switch in time that saved nine” was the name given by the press to the apparent sudden shift by Justice Owen J The United States Congress is the bicameral Legislature of the federal government of the United States of America, consisting of two houses In discussing the new presumption of constitutionality that the Court would apply to economic legislation, Justice Harlan Stone wrote:

[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Legislation (or " Statutory law " is law which has been promulgated (or " Enacted quot by a Legislature or other Governing Harlan Fiske Stone ( October 11 1872 – April 22 1946) was an American Lawyer and jurist. ^[16]

Thus were born the "more searching" levels of scrutiny—"strict" and "intermediate"—with which the Court would examine legislation directed at racial minorities and women. Although the Court first articulated a "strict scrutiny" standard for laws based on race-based distinctions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944), the Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia. Hirabayashi v United States, 320 US 81 ( 1943) was a case in which the United States Supreme Court held that the application of curfews Korematsu v United States, 323 US 214 (1944 was a landmark United States Supreme Court case concerning the constitutionality of Executive Order Loving v Virginia,, was a landmark Civil rights case in which the United States Supreme Court declared Virginia 's Anti-miscegenation Intermediate scrutiny did not command the approbation of a majority of the Court until the 1976 case of Craig v. Boren. Craig v Boren,, was the first case in which a majority of the United States Supreme Court determined that statutory or administrative sex classifications had to

The Supreme Court has defined these levels of scrutiny in the following way:

• Strict scrutiny (if the law categorizes on the basis of race or national origin): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. Strict scrutiny is the most stringent standard of Judicial review used by United States courts reviewing federal law In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
• Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest. Intermediate scrutiny, in US constitutional law, is the middle level of scrutiny applied by courts deciding constitutional issues through Judicial review. Note that in past decisions "sex" generally has meant gender. Gender comprises a range of differences between men and women extending from the biological to the social
• Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest. Rational basis review, in US constitutional law, is the lowest level of scrutiny applied by courts deciding constitutional issues through Judicial review.

Although in 1985 the court in City of Cleburne v. Cleburne Living Center, Inc. held mentally retarded persons were deemed to be subject to a "rational basis" test, in invalidating seemingly rational zoning laws and land use restrictions, many assert that the court introduced an "enhanced" rational basis test that required the state to show more than a facially valid law and instead to balance the community's needs against the needs of the disabled. City of Cleburne v Cleburne Living Center Inc, 473 US 432 (1985 was a U Mental retardation is a generalized triarchic disorder characterized by subaverage cognitive functioning and deficits in two or more adaptive behaviors with onset before the age ^[17]

There is, arguably, a fourth level of scrutiny for equal protection cases. In United States v. Virginia Justice Ruth Bader Ginsburg eschewed the language of intermediate scrutiny for sex-based discrimination and instead demanded that litigants articulate an "exceedingly persuasive" argument to justify gender discrimination. United States v Virginia,, is a case in which the Supreme Court of the United States struck down the Virginia Military Institute 's long-standing Ruth Joan Bader Ginsburg (born March 15 1933 Brooklyn New York) is an Associate Justice on the U Whether this was simply a restatement of the doctrine of intermediate scrutiny or whether it created a new level of scrutiny between the intermediate and strict standards is unclear.

Discriminatory intent or disparate impact?

After Brown, questions still remained about the scope of the equal protection clause. Does the Clause outlaw public policies that cause racial disparities—for example, a public school examination that has not been established for racist reasons, but that more white students than black students pass? Or, on the other hand, does it only outlaw intentional bigotry?

The Supreme Court has answered that the equal protection clause itself does not forbid policies which lead to racial disparities, but that Congress may by legislation prohibit such policies.

Take, for example, Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion. Title VII applies both to private and to public employers. (While Congress applied Title VII to private employers using its interstate commerce power, it applied Title VII to public employers under its power to enforce the Fourteenth Amendment. Title VII's standards for public and private employers are the same. ) The Supreme Court ruled in Griggs v. Duke Power Co. (1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII. Griggs v Duke Power Co, 401 US 424 (1971 was a court case argued before the United States Supreme Court on December 14, 1970 In the years since Griggs, courts have defined "business necessity" as requiring the employer to prove that whatever is causing the racial disparity—be it a test, an educational requirement, or another hiring practice—has a demonstrable factual relationship to making the company more profitable. ^[18]

In situations involving only the equal protection clause, however, the focus of the court is on discriminatory intent. Such intent was manifested in the seminal case of Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977). Village of Arlington Heights v Metropolitan Housing Development Corp, 429 U In that case, the plaintiff, a housing developer, sued a city in the suburb of Chicago that had refused to re-zone a plot of land on which the plaintiff intended to build low-income, racially integrated housing. Chicago (ʃɪˈkɑːgoʊ is the largest City by population in the state of Illinois and the American Midwest of the United States. Zoning is a term used in Urban planning for a system of land-use Regulation in various parts of the world including North America the United Kingdom On the face, there was no clear evidence of racially discriminatory intent on the part of Arlington Heights's planning commission. Arlington Heights is a village in Cook County, Illinois and a northwestern Suburb of Chicago. The result was racially disparate, however, since the refusal supposedly prevented mostly African-Americans and Hispanics from moving in. Justice Lewis Powell, writing for the Court, stated, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Lewis Franklin Powell Jr ( September 19, 1907 &ndash August 25, 1998) was an Associate Justice of the Supreme Court of the " Disparate impact merely has an evidentiary value; absent a "stark" pattern, "impact is not determinative. Evidence in its broadest sense includes anything that is used to determine or demonstrate the Truth of an assertion " (See also Washington v. Davis (1976). Washington v Davis, 426 US 229 ( 1976) was a United States Supreme Court case regarding the application of the Equal Protection Clause )

Defenders of the rule in Arlington Heights and Washington v. Davis argue that the equal protection clause was not designed to guarantee equal outcomes, but rather equal opportunities and that therefore one should not be concerned with trying to fix every racially disparate effect. Equality of outcome or equality of condition is a form of Egalitarianism which seeks to reduce or eliminate differences in material condition between individuals or Equal opportunity is a term which has differing definitions and there is no consensus as to the precise meaning One should worry only about intentional discrimination. Others point out that the courts are merely enforcing the equal protection clause, and that if the legislature wants to correct racially disparate effects, it may do so through further legislation. ^[19]

Critics contend, on the other hand, that the rule would exculpate many instances of racial discrimination, since it is possible for a discriminating party to hide its true intention. To uncover the motives of the parties, the court should also consider whether the measure at issue would have disparate impact, critics argue. ^[20] This debate, though, goes on almost entirely in the academy, since the Supreme Court has not changed its basic approach as outlined in Arlington Heights.

For a prime example of how this rule limits the Court's powers under the Equal Protection Clause see McClesky v. Kemp. In that case a black man was convicted of murder and sentenced to death in the state of Georgia. A law professor, David Baldus, performed a study and found that black defendants in Georgia were much more likely to receive the death penalty. In cases involving black defendants and white victims, the death penalty was given in 22% of cases; whereas in cases involving white defendants and black victims, that penalty was given in only 3% of cases. McClesky's camp argued, in part, that the Georgia capital punishment statute violated the Equal Protection clause because, as the Baldus study showed, it had a pronounced disparate impact. However, McClesky could not show a discriminatory purpose, so the Court denied his claim.

Suspect classes

The Supreme Court has seemed unwilling to extend "suspect class" status (i. e. , status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) to groups other than women and racial minorities. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class. City of Cleburne v Cleburne Living Center Inc, 473 US 432 (1985 was a U Developmental disability is a term used to describe life-long disabilities attributable to mental and/or physical or combination of mental and physical impairments Many commentators have noted, however—and Justice Marshall so notes in his partial concurrence—that the Court does appear to examine the City of Cleburne's denial of a permit to a group home for mentally retarded people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test. ^[21]

In Lawrence v. Texas (2003), the Court struck down a Texas statute prohibiting homosexual sodomy on substantive due process grounds. Lawrence v Texas, 539 US 558 ( 2003) was a landmark United States Supreme Court case Homosexuality refers to sexual behavior with or attraction to people of the same sex or to a Homosexual orientation. Sodomy (ˈsɒdəmi is a term used today predominantly in Law (derived from traditional Christian usage to describe the act of Anal intercourse, Oral intercourse In Justice Sandra Day O'Connor's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne. Sandra Day O'Connor (born March 26, 1930) is an American Jurist.

Notably, O'Connor did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation. Sexual orientation is believed to refer to "an enduring pattern of emotional romantic and/or sexual attractions to men women or both sexes Much as in City of Cleburne, though, the Court's decision in Romer v. Evans (1996), on which O'Connor also relied in her Lawrence opinion, and which struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination," seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test. Romer v Evans, 517 US 620 ( 1996) was a United States Supreme Court case dealing with civil rights and state laws The State of Colorado ( or chiefly by nonresidents) is a state located in the Rocky Mountain region of the United States of America. ^[22] While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases. Sexual orientation is believed to refer to "an enduring pattern of emotional romantic and/or sexual attractions to men women or both sexes ^[23]

Affirmative action

Affirmative action is the policy of consciously setting racial, ethnic, religious, or other kinds of diversity as a goal within an organization, and, in order to meet this goal, purposely selecting people from certain groups that have historically been oppressed or denied equal opportunities. Affirmative action in the United States|Employment equity (Canada|Reservation in India|Numerus clausus The term affirmative action describes many policies aimed at a historically The term multiculturalism generally refers to a state of racial, cultural and ethnic diversity within the Demographics of a specified In affirmative action, individuals of one or more of these minority backgrounds are preferred—ceteris paribus—over those who do not have such characteristics; such a preferential scheme is sometimes effected through quotas, though this need not necessarily be so. la Cēterīs paribus is a Latin phrase literally translated as "with other things the same Racial quotas in employment and education are numerical requirements for hiring promoting admitting and/or graduating members of a particular racial group while discriminating

Although there were forms of what is now called affirmative action during the Reconstruction (most of which were implemented by the same persons who framed the Fourteenth Amendment^[24]) the modern history of affirmative action began with the Kennedy administration and started to flourish during the Johnson administration, with the Civil Rights Act of 1964 and two Executive Orders. executive order in the United States is a Directive issued by the President, the head of the executive branch of the federal government These policies directed agencies of the federal government to employ a proportionate number of minorities whenever possible. ^[25]

Several important affirmative action cases to reach the Supreme Court have concerned government contractors—for instance, Adarand Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co. (1989). An independent contractor is a Natural person, Business or Corporation which provides goods or services to another entity under terms Adarand Constructors Inc v Peña,, is a United States Supreme Court case which held that all racial classifications imposed by whatever federal state City of Richmond v JA Croson Co, 488 US 469 ( 1989) was a case in which the United States Supreme Court held that the city council But the most famous cases have dealt with affirmative action as practiced by public universities: Regents of the University of California v. Bakke (1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger and Gratz v. Bollinger. A public university is a University that is predominantly funded by public means through a national or subnational government as opposed to private universities. Regents of the University of California v Bakke, 438 US 265 (1978 was a landmark decision of the Supreme Court of the United States on Affirmative Grutter v Bollinger, 539 US 306 (2003 is a case in which the United States Supreme Court upheld the Affirmative action Gratz v Bollinger, 539 US 244 ( 2003) was a United States Supreme Court case regarding the University of Michigan

In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan law school. The University of Michigan Ann Arbor ( U of M, U-M, UM or simply Michigan) is a top-ranked Coeducational public research In dicta, however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In common law legal terminology a dictum (plural dicta) is any statement that forms a part of the Judgment of a court in particular a court whose decisions have value In Gratz, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race not as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.

In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice Clarence Thomas in his dissent to Grutter—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one. Clarence Thomas (born June 23, 1948) is an American Jurist. He has been serving as an Associate Justice of the Supreme Court of the United ^[26] On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny. ^[27]

The Equal Protection Clause and voting

Although the Supreme Court had ruled in Nixon v. Herndon (1927) that the Fourteenth Amendment prohibited denial of the vote based on race, the first modern application of the Equal Protection Clause to voting law came in Baker v. Carr (1962), where the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause. Nixon v Herndon, 273 US 536 (1927 was a United States Supreme Court decision in which the Court struck down a Texas law which forbade blacks Baker v Carr, 369 US 186 (1962 was a landmark United States Supreme Court case that retreated from the Court's Political question Tennessee ( is a state located in the Southern United States. In the United States of America, a state legislature is a generic term referring to the legislative body of any of the country's 50 states. This ruling was extended two years later in Reynolds v. Sims (1964), in which a "one man, one vote" standard was laid down: in both houses of state legislatures, each resident had to be given equal weight in representation. Reynolds v Sims, 377 US 533 ( 1964) was a United States Supreme Court case that ruled that state legislature districts had to be

It may seem counterintuitive that the equal protection clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment and the Nineteenth Amendment redundant. Suffrage (from the Latin suffragium, meaning "voting tablet" and figuratively "right to vote" probably from suffrago "hough" and originally The Nineteenth Amendment ( Amendment XIX) to the United States Constitution prohibits each of the states and the federal government from Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan (the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. John Marshall Harlan (May 20 1899 – December 29 1971 was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971 Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights, and in reference to the Fifteenth and Nineteenth Amendments, he said:

If constitutional amendment was the only means by which all men and, later, women, could be guaranteed the right to vote at all, even for federal officers, how can it be that the far less obvious right to a particular kind of apportionment of state legislatures . . . can be conferred by judicial construction of the Fourteenth Amendment? [Emphasis in the original. ]

However, Reynolds and Baker do not lack a rationale, if seen from another perspective. The Supreme Court has repeatedly stated that voting is a "fundamental right" on the same plane as marriage (Loving v. Virginia), privacy (Griswold v. Connecticut (1965)), or interstate travel (Shapiro v. Griswold v Connecticut, 381 US 479 ( 1965) was a Landmark case in which the Supreme Court of the United States ruled that the Thompson (1969)). For any abridgment of those rights to be constitutional, the Court has held, the legislation must pass strict scrutiny. ^[28] Thus, on this account, equal protection jurisprudence may be appropriately applied to voting rights.

A recent use of equal protection doctrine came in Bush v. Gore (2000). Bush v Gore,, was a United States Supreme Court case decided on December 12, 2000. At issue was the controversial recount in Florida in the aftermath of the 2000 presidential election. Florida ( is a state located in the southeastern region of the United States, bordering Alabama to the northwest and Georgia to the The United States presidential election of 2000 was a contest between Democratic candidate Al Gore, then Vice President, and Republican There, the Supreme Court decided that the different standards of counting ballots across Florida violated the equal protection clause. It was not this decision that proved especially controversial among commentators, and indeed, the proposition gained seven out of nine votes; Justices Souter and Breyer joined the majority of five—but only, it should be emphasized, for the finding that there was an Equal Protection violation. For the Australian artist see David Henry Souter. David Hackett Souter (ˈsutɚ born September 17, 1939) has been an Stephen Gerald Breyer (born August 15 1938 is an American Attorney and Jurist. What was controversial was, first, the remedy upon which the majority agreed—that even though there was an equal protection violation, there was not enough time for a recount—and second, the suggestion that the equal protection violation was true only on the facts of Bush v. A legal remedy (also judicial relief) is the means a Court of law, usually in the exercise of civil law jurisdiction enforces a Right, imposes Gore; commentators suggested that this meant that the Court did not wish its decision to have any precedential effect, and that this was evidence of its unprincipled decision-making. In Common law legal systems, a precedent or authority is a Legal case establishing a principle or rule that a Court or other judicial ^[29]

Notes

See also

• Animal rights
• Equal consideration of interests
• Gay rights
• Human rights
• Majoritarianism
• Social contract