Civil Rights and Equal Protection

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 in Korematsu v. United States. Although the Court upheld the government's detention of U.S. citizens of Japanese descent in relocation camps based on wartime emergency, it recognized race issues required tougher court standards.

Following World War II, the "separate but equal" doctrine came under greater criticism 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 under the law.

The slow progress of integration that followed led to violence in the streets of many cities along with numerous acts of civil disobedience. In response, Congress took action to bring the court-recognized equal protection standards into law. After passing the 1963 Equal Pay Act requiring comparable pay for comparable work for both men and women, Congress took action on racial civil rights 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 in Reynolds 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 fees to 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. Not only 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 in Graham 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) guaranteeing women and men the same constitutional protections. However, the Court upheld many gender-based state laws through the seventies, and the ERA died in 1982 due 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.