26 Equal Protection Generally - Constitutional Law

Grounds for Challenge > In Violation of Individual Rights > Individual Rights > Equal Protection

5th Amendment

Equal Protection

Equal Protection is reverse-incorporated to the federal government through the 14th Amendment, and the analysis is identical. The EPC’s underlying objective is basic equality, i.e. equal treatment for similarly situated people in light of the government’s legitimate goals (including administrative costs which often impede a law from achieving the optimal level of equality). Any government classification of individuals is subject to review under the EPC. The Court must (1) identify the classification; (2) determine the appropriate level of scrutiny; (3) and determine if Congress’s action meets that level. As to non-suspect classes, the Court has applied standard conceivable basis review, essentially identical to that employed with respect to non-fundamental SDP rights, as well as an EPC-unique variant of standard conceivable basis review colloquially deemed “animus RBR.”

(1) Rational Basis Review (RBR): The classification must be rationally related to a legitimate government interest. The inquiry asks only whether it was reasonable for Congress to choose this classification in pursuit of some

- conceivable legitimate goal, given some conceivable supporting facts.Triggered by any non-suspect classification, including age, illegal aliens, disability, and wealth/indigence

Non-legitimate interests: (1) animus, including anti-homosexual moralism; and (2) appeasing societal fears or dislikes, such as with respect to the mentally disabled.

(2) Animus RBR: A corollary of standard RBR which is triggered in the absence of a suspect class and even if the state action would otherwise pass standard RBR (i.e., some conceivable legitimate interest exists, and State’s means of achieving it are reasonably related to doing so). The state action will be found unconstitutional if the ACTUAL purpose/motivation behind the action, proved by direct or circumstantial evidence, is in fact mere animus toward the group in question. The distinction from standard RBR is that conceivable legitimate state interests the state MAY have had are immaterial to the analysis. This has been applied to invalidate state actions under the deferential RBR notwithstanding conceivable state interests in Moreno, Romer, Lawrence, Cleburne. The Court’s adoption of this variant of standard RBR in EPC analysis likely contributes to explaining why a number of cases have been struck down under EPC “RBR” whereas no comparable record exists for RBR in SDP analysis at least since 1937.

The Court seems to have applied this standard in response to certain classifications on the basis of sexual orientation, “hippie” status, and potentially mental disability, in which cases the Court purported to be applying RBR but struck down the law despite the existence of conceivable bases.

For classifications implicating what the Court has deemed “suspect classes,” the Court applies a much stricter review in some form of HS. The Court has applied HS in varying capacities to certain identified suspect classes:

(3) Intermediate Scrutiny (IS): The classification must be substantially related to an important government interest. This inquiry asks whether the classification was well-tailored in light of the facts to achieving the actual important government interest.Triggered by quasi-suspect classifications, such as gender and illegitimacy (children out of wedlock)

(4) Strict Scrutiny (SS): The classification must be narrowly tailored to a compelling government interest. The inquiry requires that the classification chosen be necessary to achieving the government’s actual compelling

- government interest.Triggered by suspect classifications, such as race and state alienage (the latter being subject to...