Suspect Classification

A presumptively unconstitutional distinction made between individuals on the basis of race, national origin, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy.

The U.S. Supreme Court has held that certain kinds of government discrimination are inherently suspect and must be subjected to strict judicial scrutiny. The suspect classification doctrine has its constitutional basis in the FIFTH AMENDMENT and the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT, and it applies to actions taken by federal and state governments. When a suspect classification is at issue, the government has the burden of proving that the challenged policy is constitutional.

The concept of suspect classifications was first discussed by the Supreme Court in KOREMATSU V. UNITED STATES, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944). The Court upheld the "relocation" of Japanese Americans living on the West Coast during WORLD WAR II, yet Justice HUGO L. BLACK, in his majority opinion, stated that

all legal restrictions which curtail the CIVIL RIGHTS of a single group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

Though it is now widely recognized that no compelling justification existed for the relocation order and that racial prejudice rather than national security led to the forced removal of Japanese Americans, Korematsu did signal the Court's willingness to apply the Equal Protection Clause to suspect classifications.

STRICT SCRUTINY of a suspect classification reverses the ordinary presumption of constitutionality, with the government carrying the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result. Although strict scrutiny is not a precise test, it is far more stringent than the traditional RATIONAL BASIS TEST, which only requires the government to offer a reasonable ground for the legislation.

Race is the clearest example of a suspect classification. For example, the Supreme Court in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 198 L. Ed. 2d 1010 (1967), scrutinized a Virginia statute that prohibited interracial marriages. The Court noted that race was the basis for the classification and that it was, therefore, suspect. The Court struck down the law because Virginia failed to prove a compelling STATE INTEREST in preventing interracial marriages. Legislation discriminating on the basis of religion or ethnicity, as well as those statutes that affect fundamental rights, also are inherently suspect. The Supreme Court has not recognized age and gender as suspect classifications, though some lower courts treat gender as a suspect or quasi-suspect classification.