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Constitution 101: Equal Protection

The Constitution’s guarantee of “equal protection of the laws” is deceptively complicated. Does it forbid affirmative action? Does it require same-sex marriage? Find out in part 11 of Legal Lad’s series about the U.S. Constitution.

By
Adam Freedman
December 14, 2012

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Today’s Topic: Constitution 101 – Equal Protection

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Constitution 101

This is the eleventh installment of a new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.

The Equal Protection Clause

The Equal Protection Clause is part of the 14th Amendment, which is one of three post-Civil War amendments ratified in 1868. Together, the 13th, 14th, and 15th Amendments were designed to require equal rights for former slaves. In an earlier episode of this Constitution series, I discussed the Due Process clause of the 14th Amendment, which prohibits states from denying “life, liberty, or property” without due process. The Equal Protection Clause says that no state may “deny to any person within its jurisdiction the equal protection of the laws.”

On its face, the clause requires that all persons be treated equally under the law. In reality, however, many, many laws require that different categories of people receive different treatment.  Think about it: various laws say things like people under 16 can’t drive a car; or people under 21 can’t drink alcohol; or that women can’t serve in combat units in the military. Don’t those violate “equal protection?” The key is that courts will generally uphold such laws as long as they have a rational basis. Some laws, however, are held to a higher standard—known as “strict scrutiny”—if they are found to target a “suspect class,” that is, a group that has suffered a history of unequal treatment.

Gay Marriage

In 2010, federal judge Vaughn Walker held that a California law (known as Proposition 8) defining marriage as the union of one man and one woman violates the Equal Protection Clause. Walker held that Prop 8 should be treated to “strict scrutiny” because gays constitute a “suspect class.” No federal court had previously held that gays and lesbians constitute a “suspect class” under the Equal Protection Clause.  More recently, a 2012 ruling of the Second Circuit Court of Appeals invalidated section 3 of the federal Defense of Marriage Act which defines marriage for purposes of federal law as the union of one man and one woman. Similar to Walker’s ruling, the Court held that gays are a quasi-suspect class, in part because, as a group, they lack political power. The Supreme Court has agreed to review this ruling during its 2013 term.

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