Note: This is an educational course, not legal advice.
The Equal Protection Clause says no state shall "deny to any person within its jurisdiction the equal protection of the laws." Every law draws lines: drivers under 16 may not drive, only licensed doctors may prescribe. So the clause cannot forbid all classifications. It asks whether a line is justified, and how hard the government must work to justify it depends on what kind of line it is. You learned the three tiers in Con Law I: choosing the tier; this unit applies them.
| Step | Question | Example |
|---|---|---|
| 1. Find the classification | Whom does the law treat differently, and on what basis? On its face, or in purpose? | a law limiting a job to citizens classifies by alienage |
| 2. Choose the tier | Suspect (race, national origin, state alienage) → strict; quasi-suspect (sex, legitimacy) → intermediate; everything else → rational basis. A burden on a fundamental right → strict | a sex-based rule gets intermediate scrutiny |
| 3. Apply the test | Interest (compelling, important, legitimate) and fit (narrowly tailored, substantially related, rationally related); who bears the burden | under strict scrutiny the government must prove both |
| 4. Conclude | Valid or invalid, on its face or as applied |
Why it works
Why tiers at all? The idea traces to Carolene Products' footnote four: most laws are the ordinary give and take of politics, and courts should defer; but laws aimed at groups that prejudice shuts out of politics deserve a closer look. The Court has looked at a group's history of discrimination, whether the trait is unchangeable and unrelated to ability, and the group's political power.
Key idea
Equal protection analysis: identify the classification, pick the tier (strict, intermediate, rational basis), then apply its test. The clause binds states; Bolling v. Sharpe (1954) applies the same guarantee to the federal government through the Fifth Amendment's Due Process Clause ("reverse incorporation").
Worked example: A federal law
Congress passes a law that gives a federal benefit only to men. Which clause does a challenger use?
- The Fourteenth Amendment's Equal Protection Clause says "No State shall…," so it does not reach Congress by its words.
- Bolling v. Sharpe: the Fifth Amendment's Due Process Clause contains an equal protection component that binds the federal government.
- The analysis is the same: a sex classification gets intermediate scrutiny.
Answer: The Fifth Amendment's Due Process Clause, with the same equal protection analysis.
Worked example: Pick the tier
A state law sets a lower tuition rate for state residents than for nonresidents at its universities. What tier?
- The classification is residence, not race, sex or alienage.
- Residence is not a suspect or quasi-suspect class, and charging nonresidents more does not burden a fundamental right in the Court's cases.
- So rational basis applies, and such rates have been upheld.
Answer: Rational basis.
Common mistake
Thinking the Equal Protection Clause applies to the federal government by its words. It names the states. Bolling reached federal action through the Fifth Amendment ("reverse incorporation"), and the Court applies the same tiers to federal and state laws (Adarand Constructors, Inc. v. Peña (1995) confirmed this for race).