Civil Rights and Equal Protection

The Notion of Equality
The term equal in constitutional law is most commonly associated with the notion of human equality. To most, equality refers to the natural and politicalrights of essentially all persons living in the United States, especially thenation's citizens. For example, the Pledge of Allegiance ends with referenceto "liberty and justice for all." However, in the late eighteenth and earlynineteenth centuries, the concept of equality with full protected rights didnot apply to all persons, only a select group. The concept of equality was, and is, dynamic with different interpretations always evolving regarding questions of race, gender, nationality, and other aspects of life. Though equalityin U.S. constitutional law does not mean that all groups must be treated thesame, it does protect groups from arbitrary or hostile discrimination. Someclear government purpose or objective must be evident when a group is distinguished in any law.
The Mirage of Equality
The notion of equality was so restricted in the late eighteenth century thatthe term or even the concept of equality did not appear anywhere in the Constitution or Bill of Rights. Still, the limited idea of equality held by the framers of the Constitution was actually considered bold at the time. Equalitywas primarily extended only to white adult males with property, not to African Americans, women, or the poor. Not until 1868, following the Civil War, wasthe concept of equality written into constitutional law. Even then, when theFourteenth Amendment defining citizenship was drafted, the Equal ProtectionClause quietly appeared in a draft with little debate or discussion. The amendment forbade states from "deny[ing] any person within its jurisdiction the equal protection of the laws." As written, the clause only applied to state governments, not federal. The primary intent of the amendment at the time was to provide citizenship to persons of color and assure African Americans they would enjoy the same constitutional civil rights protections as whites. The concept of sex discrimination was nowhere in sight.
Shortly after adoption of the amendment, the Supreme Court began a lengthy period of very narrow interpretations. In Slaughterhouse Cases (1873), the Court held that the only national rights protected from state infringementwere the rights to petition the federal government and vote in federal elections. Any other state restrictions were beyond the scope of federal protection. That same year in Bradwell v. Illinois, the Court upheld a state law banning women from the practice of law. Reflecting social attitudes of theday, the Court found women generally unfit for the rigors of law practice andmore suitable to domestic activities. Furthermore, the Court ruled in 1875 that the federal government could not require states to allow women to vote. As a result, until adoption of the Nineteenth Amendment in 1920, women held less of a voting right than African Americans.
Following the Slaughterhouse decision, Congress passed the Civil Rights Act of 1875, protecting African Americans from discrimination in public transportation, inns, theaters, and other types of public places. The Court in Civil Rights Cases (1883) struck down the law by holding the FourteenthAmendment only applied to state government discrimination, not actions by private persons. In addition, the Court ruled that Congress could only addressdiscrimination after it occurred and could not prohibit discriminatory stateactions in advance. The next major decision came in 1896 when the Court sanctioned the "separate but equal" doctrine in Plessy v. Ferguson. The doctrine meant that the Equal Protection Clause would not be violated if facilities provided for African Americans were equal to those provided for whites. As a result, state-imposed racial segregation became pervasive, particularly in the South, including which had separate public water fountains and toilets.States also imposed poll taxes and property and literacy tests to limit African Americans from voting. Consequently, over 70 years would pass after adoption of the Fourteenth Amendment before African Americans would begin to benefit from it.
Ironically, aliens, citizens of foreign countries in the United States, faredbetter than African Americans during this period under the Equal ProtectionClause. In Yick Wo v. Hopkins (1886), the Court found that San Francisco's policy for renewing business permits was differently applied to Asians and whites with no justifiable governmental reason. Such arbitrariness violated the Asians' right to earn a living, essential for an individual's enjoymentof life. Importantly, the Court ruled that the Fourteenth Amendment protectsall individuals from discrimination, not just U.S. citizens. Congress may hold the constitutional power to regulate immigration into the country, but once an individual is allowed entrance, they enjoy the same constitutional protections as citizens.
Through this early time, the Supreme Court focused almost solely on equalityof opportunity in the economic marketplace including state taxation issues and economic regulation. The Court established its first standard review test for equal protection cases in Lindsley v. Natural Carbonic Gas Co. (1911), a fairly weak test requiring states to show only that a reasonable basisexisted for group restrictions. The Court recognized a broad right of government to distinguish between different groups in regulating economic activitiesas long as the distinctions were not arbitrary. The Equal Protection Clauseremained a very weak form of constitutional protection for over half a century after its adoption, unresponsive to claims of individual rights.
A Switch to Individual Rights
In the 1930s and 1940s, a fundamental shift to individual rights protection began. The Equal Protection Clause actually began to protect those for which it was originally designed. In Missouri ex rel. Gaines v. Canada (1938), the Court ruled admissions to a state law school based strictly on race violated the clause. In a prisoner sterilization case, Skinner v. Oklahoma (1942), the Court again expanded equal protection by declaring a fundamental right to marriage and procreation. The declining tolerance for laws restricting the rights of specific racial groups was further demonstrated in 1944 inKorematsu v. United States. Although the Court upheld the government's detention of U.S. citizens of Japanese descent in relocation camps based onwartime emergency, it recognized race issues required tougher court standards.
Following World War II, the "separate but equal" doctrine came under greatercriticism led by the National Association for the Advancement of Colored People (NAACP). The ruling of Brown v. Board of Education in 1954 essentially began a civil rights revolution in the United States. By striking down the "separate but equal" doctrine, the Court held unconstitutional public school segregation. In the same year, the Court in Bolling v. Sharpe applied the Equal Protection Clause to federal laws and actions for the first time.The Fifth Amendment's Due Process Clause served as the key avenue of authority. The Court found the two concepts, equal protection and due process, closely intertwined with equal protection more directly addressing fairness underthe law.
The slow progress of integration that followed led to violence in the streetsof many cities along with numerous acts of civil disobedience. In response,Congress took action to bring the court-recognized equal protection standardsinto law. After passing the 1963 Equal Pay Act requiring comparable pay forcomparable work for both men and women, Congress took action on racial civilrights issues by passing the landmark Civil Rights Act of 1964. The Civil Rights Act prohibited discrimination based on race, color, national origin, or religion in most privately-owned businesses serving the public. It also promoted equal opportunity in employment on the basis of race, religion, and sex. The act was immediately challenged but quickly and unanimously upheld by the Supreme Court. Also in 1964, equal protection was extended to voters rights inReynolds v. Sims. State electoral districts must have roughly the same number of voters. This decision affirmed the "one person, one vote" doctrine which Congress put into law with the Voting Rights Act of 1965. The Court also struck down residency requirements, poll taxes, and candidate filing feesto provide equal protection to all voters and political candidates. Cases challenging voter district boundaries continued through the nineties.
Building on the earlier Korematsu decision while overturning a state law banning interracial marriages, the Court created a second, much tougher test for racial discrimination challenges in Loving v. Commonwealth of Virginia (1967). The government must meet the "compelling interest" test. Notonly must the government show a compelling interest in justifying a restriction, it must also show that the restriction is narrowly tailored to meet the objective. The following year, in 1968, Congress passed the Fair Housing Act prohibiting discrimination in housing. Making alien status comparable to race,the compelling interest test was extended in 1971 by the Court to aliens inGraham v. Richardson.
The civil rights movement of the 1950s and 1960s also raised public consciousness regarding sex discrimination. The protective paternalistic perspective toward women began to change. In 1971 in Reed v. Reed, the Court for the first time struck down a state law for arbitrarily discriminating against women. In 1972, Congress passed the Equal Rights Amendment (ERA) guaranteeingwomen and men the same constitutional protections. However, the Court upheldmany gender-based state laws through the seventies, and the ERA died in 1982due to the lack of state ratification.
In 1972, the Court also began to strike down laws discriminating against illegitimate children and unwed fathers in certain circumstances. In Weber v.Aetna Casualty & Surety Co., the Court found that laws restricting the rights of illegitimate children are contrary to the basic concepts of fairness. Illegitimate children should receive the same protections as other children and not be penalized for their parents' conduct.
For sex discrimination cases, the Court in Craig v. Boren (1976) created a third equal protection test more rigorous than "reasonable basis" but weaker than "compelling interest." The government must show an "important governmental objective," or a distinction based on sex would violate the Equal Protection Clause.
The Ongoing Expansion of Equality
Into the 1990s, the Equal Protection Clause continued to take on considerablymore and unexpected importance, becoming the focus of extensive legal actionas the role of the federal government changed. Newer issues included sexualharassment, gay rights, affirmative action, and assisted suicide. Originally,the role of government was primarily to resolve conflicts and protect individual behavior unless it was extreme. However, government's role shifted in the late twentieth century to promoter of the welfare of the community, even ifit meant restricting individual rights. To many, the shift was one from liberty to equality. Social programs placed an increasing burden on the nation toensure at least the minimum needs for a decent human life for all of its citizens. The constitutional basis for assigning this new role to government wasthe Equal Protection Clause of the Fourteenth Amendment. Interpretation of the clause expanded, making it the primary constitutional shield safeguardingthe civil rights of many distinct groups of people. A truly fundamental change in U.S. law and society had occurred.
Regarding sexual harassment, the Court in Meritor Savings Bank v. Vinson (1986) ruled that such claims fell within civil rights law. Such discrimination was considered a violation of equal protection if it unreasonably interfered with an individual's work performance or created a pervasive hostile environment. The issue greatly rose in visibility with Justice Clarence Thomas'confirmation hearings of 1991. In J. E. B. v Alabama (1994), the Court ruled women could not be excluded by lawyers from serving on juries based purely on their gender. In 1996, the Court ruled in United States v. Virginia that government must demonstrate an "exceedingly persuasive justification" to defend gender-based discrimination. The Court struck down the publicly-funded Virginia Military Institute's tradition of excluding women as a violation of equal protection. Many contended that Paula Jones' initial harassment claim against President Bill Clinton, alleging a constitutional violation of equal protection, underscored an increasingly obscure perception of equal protection through the 1990s. To many, the increasing confusion of plain violations of common decency with constitutional protections diluted constitutional integrity.
Also, in 1996, a circuit court ruled in Nabozny v. Podlesny that public school officials may be held liable for failing to stop the harassment of gay students, thus violating their right to equal protection under the law. Thus, sexual orientation fell under the Equal Protection Clause. The more publicized case involving gay rights law occurred when the Supreme Court in Romer v. Evans (1996) struck down a Colorado law, passed as a referendum in1992, prohibiting state or local governments from granting homosexuality a legal minority status. The law did not pass the "rational basis" test accordingto the Court. Referendum supporters claimed the decision highlighted the Court's confusion of preferential treatment with equal protection. They assertedthat the law sought to prevent preferential treatment, not deny equal protection. This ruling, they asserted, presented yet another instance of "social legislation" by the Court.
Governmental affirmative action programs also came under attack in equal protection disputes. The Court ruled in Adarand Constructors, Inc. v. Pena(1995) that racial entitlements of any kind were unacceptable and offended moral perceptions of fairness. The following year California voters passed a referendum, entitled the Civil Rights Initiative, striking down affirmative action programs and claiming to establish racial, ethnic, and gender equality under state law in education, employment, and contracting. Ironically, a federal district judge immediately issued an injunction, finding that the proposition violated the Equal Protection Clause. A Court of Appeals later reversed the decision in 1997.
During the late 1990s, physician-assisted suicide entered the equal protection arena. A federal appeals court in New York in 1996 ruled that patients whocommit suicide with prescribed drugs should have the same options as those who choose to have their life support equipment turned off. The manner of ending a life was not relevant. A federal appeals court went even further that year finding assisted suicide a fundamental right by striking down a Washingtonstate law.
By the close of the twentieth century three separate tests were used by the courts to judge the constitutionality of challenged laws under the Equal Protection Clause. The toughest "compelling interest" test applied to race and aliens cases, the intermediate "important governmental objective" test applied to gender and legitimacy issues, and the least stringent "rational basis" applied to most other cases. The original intent of the Equal Protection Clause was to give the humblest and poorest the same civil rights as the most powerful and wealthy. As notions of equality continued to expand, some argued that equality of "result" was gradually replacing equality of "opportunity."