Civil Rights and Equal Protection

Into the 1990s, the Equal Protection Clause continued to take on considerably more and unexpected importance, becoming the focus of extensive legal action as the role of the federal government changed. Newer issues included sexual harassment, 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 if it meant restricting individual rights. To many, the shift was one from liberty to equality. Social programs placed an increasing burden on the nation to ensure 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 was the Equal Protection Clause of the Fourteenth Amendment. Interpretation of the clause expanded, making it the primary constitutional shield safeguarding the 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 in 1992, prohibiting state or local governments from granting homosexuality a legal minority status. The law did not pass the "rational basis" test according to the Court. Referendum supporters claimed the decision highlighted the Court's confusion of preferential treatment with equal protection. They asserted that 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 who commit 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 Washington state 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."