The 14th Amendment
Equal Protection Clause
The 14th Amendment
Equal Protection Clause
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Brow n (1954): Segregation of children in
public schools solely on the basis of race
deprives children of the minority group of equal
educational opportunities, even though the
physical facilities and other "tangible" factors
may be equal.
Civil Rights Act of 1964 – could NOT be
enforced via the equal protection clause; Heart
of Atlanta Motel (1964) uses the Commerce
Clause in Article I.
Defacto Segregation
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Civil Rights Act of 1968 - Housing
Swann v. Charlotte-Mecklenburg (1971) –
Busing 1970’s Busing Riots (Boston) Swann v Charlotte in Boston.doc
Affirmative Action
(Race)
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R egents of the University of
California v. Bakke (1978) – Reverse
Discrimination case ; absolute quotas
violate the 14th; nevertheless, upheld the
principle of affirmative action.
Bakke’s jurisprudence was once again
used in 2003: Grutter v. Bollinger and
Gratz v. Bollinger (University of
Michigan cases)
U.S. Military filed an am icus curiae brief in favor of
affirmative action.
Equal Protection Tests
(14th Amendment)
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Rational Basis Test:
General Discrimination
Claims
Suspect Class Test:
Racial Discrimination
(strict scrutiny)
Intermediate Scrutiny
Test: Sex Discrimination
(heightened scrutiny)
• Is the challenged
discrimination rational, or
is it arbitrary and
capricious?
• Laws based upon racial
criteria are inherently
arbitrary.
• Sex is not quite a suspect
class and the rational
basis test does not go far
enough to protect
women.
The Supreme Court has defined these
levels of scrutiny in the following way:
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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. Can a blind
man be a fireman?
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. Note that in
past decisions "sex" generally has meant gender. Can a
woman be a fireman?
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. In addition, there cannot be a "less restrictive"
alternative available to achieve that compelling interest. Can a
black man be a fireman?
Landmark Cases
Women’s Rights
Coverture
Abortion Rights
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Reed v. Reed (1971)
 Stanton v. Stanton (1975) 
W om en as a I nterm ediate
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Suspect Class
 Craig v. Boren (1976)
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 Rostker v. Goldberg (1981)
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Griswold v. Connecticut (1965)
Roe v. Wade (1973)
Webster v. Reproductive Health
Services (1989)
Planned Parenthood v. Casey
(1992)
Stenberg v. Carhart (2000)
Gonzales v. Carhart (2007)
Affirmative Action
(Sex)
United States v. Com m onw ealth of Virginia (1992)
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The Case required Virginia to comply with the Equal Protection
Clause; options: 1. the Commonwealth might properly decide to
admit women to VMI and adjust the program to implement that
choice, 2. or it might establish parallel institutions or parallel
programs, or 3. it might abandon state support of VMI, leaving
VMI the option to pursue its own policies as a private
institution.
Justice Ginsburg wrote regarding the parallel
institution, “In myriad respects other than military training,
VWIL does not qualify as VMI's equal. VWIL's student body,
faculty, course offerings, and facilities hardly match VMI's. Nor
can the VWIL graduate anticipate the benefits associated with
VMI's 157-year history, the school's prestige, and its influential
alumni network.”
VMI was required to admit women – Citadel would be as well.
Homosexuality
Rational, Intermediate or Strict?
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In Law rence v. Tex as (2003), the Court struck
down a Texas statute prohibiting homosexual
sodomy on substantive due process grounds.
However, in Justice Sandra Day O'Connor's
concurring opinion, 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.
Boy Scouts of America v. Dale (2000) – A private
organization may ban gays from its membership.
Homosexuality (cont.)
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.
?????????????????????????????????????????
Justice Department Intervenes In Gay Rights Suit : NPR
Gay Marriage
and the Federal Government
Defense of Marriage Act (1996), or DOMA
1.
2.
No state (or other political subdivision within the
United States) needs to treat a relationship
between persons of the same sex as a marriage,
even if the relationship is considered a marriage
in another state.
The Federal Government may not treat same-sex
relationships as marriages for any purpose, even
if concluded or recognized by one of the states or
a foreign nation.
*1990’s Impetus: Opponents of gay marriage feared (and
many proponents hoped) that the states that did not recognize gay
marriage would then be required to under the Full Faith and
Credit Clause
The Americans with Disabilities
Act (1990)
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Disabled persons may not be denied
employment or promotion if, with
“reasonable accommodation,” they can
perform the duties of that job. Reasonable
accommodations do not have to be made
if this would cause “undue hardship” on
the employer.
Unfunded Mandate – unless you prove
that it will result in an “undue hardship” or
“excessive cost” – racial or sexual
discrimination must end regardless of cost
Equal Protection and Voting
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Baker v. Carr (1962), 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.
W esbury v Sanders ( 1964) and Reynolds v.
Sim s (1964) – “One Man = One Vote”
Additional Info:
If you want to be wicked smart.
Click here: Post Brown Equal Protection
Clause Notes.doc
Additional Info:
Kerner Commission (1968)
“Our Nation I s M oving Tow ard Tw o Societies, One Black, One W hite—Separate and
Unequal ”
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President Lyndon Johnson formed an 11-member National Advisory Commission on
Civil Disorders in July 1967 to explain the riots that plagued cities each summer since
1964 and to provide recommendations for the future.
The Commission’s 1968 report, informally known as the Kerner Report, concluded
that the nation was “moving toward two societies, one black, one white—separate
and unequal.” Unless conditions were remedied, the Commission warned, the
country faced a “system of ’apartheid’” in its major cities.
The Kerner report delivered an indictment of “white society” for isolating and
neglecting African Americans and urged legislation to promote racial integration and
to enrich slums—primarily through the creation of jobs, job training programs, and
decent housing.
In April 1968, one month after the release of the Kerner report, rioting broke out in
more than 100 cities following the assassination of civil rights leader Martin Luther
King, Jr.
In 1998, 30 years after the issuance of the Report, former Senator and Commission
member Fred R. Harris co-authored a study that found the racial divide had grown in
the ensuing years with inner-city unemployment at crisis levels.
Opposing voices argued that the Commission’s prediction of separate societies had
failed to materialize due to a marked increase in the number of African Americans
living in suburbs.