Equal Protection Clause

Representative John Bingham of Ohio, principal author of theEqual Protection Clause

The Equal Protection Clause was created largely in responseto the lack of equal protection provided by law in states with Black Codes. Under Black Codes, blacks could notsue, give evidence, or be witnesses. They also were punished more harshly thanwhites.[120] In 1880, the Supreme Court stated in Strauder v. West Virginia that the EqualProtection Clause was

designed to assure to the colored racethe enjoyment of all the civil rights that under the law are enjoyed by whitepersons, and to give to that race the protection of the general government, inthat enjoyment, whenever it should be denied by the States.

The Clause mandates that individuals in similar situationsbe treated equally by the law.[121] Although the text of the FourteenthAmendment applies the Equal Protection Clause only against the States, theSupreme Court, since Bolling v. Sharpe (1954), hasapplied the Clause against the Federal government through the Due ProcessClause of the Fifth Amendment under a doctrine called "reverse incorporation".[122][123]

In Yick Wo v. Hopkins (1886), theSupreme Court has clarified that the meaning of "person" and"within its jurisdiction" in the Equal Protection Clause would not belimited to discrimination against African Americans, but would extend to otherraces, colors, and nationalities such as (in this case) legal aliens in the United States who are Chinesecitizens:[124][125]

These provisions are universal intheir application to all persons within the territorial jurisdiction, withoutregard to any differences of race, of color, or of nationality, and the equalprotection of the laws is a pledge of the protection of equal laws.

Persons "within its jurisdiction" are entitled toequal protection from a state. Largely because the Privileges and Immunities Clause of Article IV hasfrom the beginning guaranteed the privileges and immunities of citizens in theseveral states, the Supreme Court has rarely construed the phrase "withinits jurisdiction" in relation to natural persons.[125] In Plyler v. Doe (1982), where theCourt held that aliens illegally present in a state are within itsjurisdiction and may thus raise equal protection claims[125][126] the Court explicated the meaning ofthe phrase "within its jurisdiction" as follows: "[U]se of thephrase 'within its jurisdiction' confirms the understanding that the FourteenthAmendment's protection extends to anyone, citizen or stranger, who is subjectto the laws of a State, and reaches into every corner of a State'sterritory."[126] The Court reached this understandingamong other things from Senator Howard, a member of the Joint Committee of Fifteen, and the floormanager of the amendment in the Senate. Senator Howard was explicit about thebroad objectives of the Fourteenth Amendment and the intention to make itsprovisions applicable to all who "may happen to be" within thejurisdiction of a state:[126]

The last two clauses of the firstsection of the amendment disable a State from depriving not merely a citizen ofthe United States, but any person, whoever he may be, of life, liberty, orproperty without due process of law, or from denying to him the equalprotection of the laws of the State. This abolishes all class legislation inthe States and does away with the injustice of subjecting one caste of personsto a code not applicable to another. ... It will, if adopted by theStates, forever disable every one of them from passing laws trenching uponthose fundamental rights and privileges which pertain to citizens of the UnitedStates, and to all person who may happen to be within their jurisdiction.[emphasis added by the U.S. Supreme Court][127]

The relationship between the Fifth and FourteenthAmendments was addressed by Justice Field in Wong Wing v. United States(1896).[128] He observed with respect to thephrase "within its jurisdiction": "The term 'person', used inthe Fifth Amendment, is broad enough to include any and every human beingwithin the jurisdiction of the republic. A resident, alien born, is entitled tothe same protection under the laws that a citizen is entitled to. He owesobedience to the laws of the country in which he is domiciled, and, as aconsequence, he is entitled to the equal protection of those laws. ... Thecontention that persons within the territorial jurisdiction of this republicmight be beyond the protection of the law was heard with pain on the argumentat the bar—in face of the great constitutional amendment which declares that noState shall deny to any person within its jurisdiction the equal protection ofthe laws."[129]

The Supreme Court also decided whether foreign corporationsare also within the jurisdiction of a state, ruling that a foreigncorporation which sued in a state court in which it was not licensed to dobusiness to recover possession of property wrongfully taken from it in anotherstate was within the jurisdiction and could not be subjected to unequalburdens in the maintenance of the suit.[125] When a state has admitted a foreigncorporation to do business within its borders, that corporation is entitled toequal protection of the laws but not necessarily to identical treatment withdomestic corporations.[125]

In Santa Clara County v. SouthernPacific Railroad (1886), the court reporter included a statement by ChiefJustice Morrison Waite in the decision'sheadnote:

The court does not wish to hearargument on the question whether the provision in the Fourteenth Amendment tothe Constitution, which forbids a State to deny to any person within itsjurisdiction the equal protection of the laws, applies to these corporations.We are all of the opinion that it does.[130]

This dictum, which established that corporationsenjoyed personhood under the Equal Protection Clause,was repeatedly reaffirmed by later courts.[130] It remained the predominant viewthroughout the twentieth century, though it was challenged in dissents byjustices such as Hugo Black and William O. Douglas.[131] Between 1890 and 1910, FourteenthAmendment cases involving corporations vastly outnumbered those involving therights of blacks, 288 to 19.[132]

In the decades following the adoption of the FourteenthAmendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia, 1880)[133] or discriminating against Chinese Americans in the regulationof laundry businesses (Yick Wo v. Hopkins, 1886),[124] as violations of the Equal ProtectionClause. However, in Plessy v. Ferguson (1896),[134] the Supreme Court held that theStates could impose racial segregation so long as theyprovided similar facilities—the formation of the "separate but equal" doctrine.[135]

The Court went even further in restricting the EqualProtection Clause in Berea College v. Kentucky (1908),[136] holding that the States could forceprivate actors to discriminate by prohibiting colleges from having both blackand white students. By the early 20th century, the Equal Protection Clause hadbeen eclipsed to the point that Justice Oliver Wendell Holmes, Jr. dismissed it as"the usual last resort of constitutional arguments".[137]

Thurgood Marshall served as chiefcounsel in the landmark Fourteenth Amendment decision Brown v. Board of Education (1954).

The Court held to the "separate but equal"doctrine for more than fifty years, despite numerous cases in which the Courtitself had found that the segregated facilities provided by the States werealmost never equal, until Brown v. Board of Education (1954) reached the Court.[138] In Brown the Court ruled thateven if segregated black and white schools were of equal quality in facilitiesand teachers, segregation was inherently harmful to black students and so wasunconstitutional. Brown met with a campaign of resistance from whiteSoutherners, and for decades the federal courts attempted to enforce Brown'smandate against repeated attempts at circumvention.[139] This resulted in the controversial desegregation busing decrees handeddown by federal courts in various parts of the nation.[140] In Parents Involved in Community Schoolsv. Seattle School District No. 1 (2007), the Court ruled that racecould not be the determinative factor in determining to which public schoolsparents may transfer their children.[141][142]

In Plyler v. Doe (1982) theSupreme Court struck down a Texas statute denying free public education toillegal immigrants as a violation of the Equal Protection Clause of theFourteenth Amendment because discrimination on the basis of illegal immigrationstatus did not further a substantial state interest. The Court reasoned thatillegal aliens and their children, though not citizens of the United States orTexas, are people "in any ordinary sense of the term" and, therefore,are afforded Fourteenth Amendment protections.[126][143]

In Hernandez v. Texas (1954), the Courtheld that the Fourteenth Amendment protects those beyond the racial classes ofwhite or "Negro" and extends to other racial andethnic groups, such as Mexican Americans  in thiscase.[144] In the half-century following Brown,the Court extended the reach of the Equal Protection Clause to otherhistorically disadvantaged groups, such as women and illegitimate children,although it has applied a somewhat less stringent standard than it has appliedto governmental discrimination on the basis of race (United States v. Virginia (1996);[145] Levy v. Louisiana (1968)[146]).[147]

The Supreme Court ruled in Regents of the University ofCalifornia v. Bakke (1978)[148] that affirmative action in the form of racial quotas in public university admissions was aviolation of Title VI of the Civil Rights Act of 1964; however, racecould be used as one of several factors without violating of the EqualProtection Clause or Title VI.[149] In Gratz v. Bollinger (2003)[150] and Grutter v. Bollinger (2003),[151] the Court considered tworace-conscious admissions systems at the University of Michigan. The universityclaimed that its goal in its admissions systems was to achieve racial diversity.[152] In Gratz, the Court struckdown a points-based undergraduate admissions system that added points forminority status, finding that its rigidity violated the Equal ProtectionClause; in Grutter, the Court upheld a race-conscious admissions processfor the university's law school that used race as one of many factors todetermine admission.[153] In Fisher v. University of Texas (2013), the Courtruled that before race can be used in a public university's admission policy,there must be no workable race-neutral alternative.[154][155] In Schuette v. Coalition to DefendAffirmative Action (2014), the Court upheld the constitutionality of a stateconstitutional prohibition on the state or local use of affirmative action.[156][157]

Reed v. Reed (1971),[158] which struck down an Idaho probatelaw favoring men, was the first decision in which the Court ruled thatarbitrary gender discrimination violated the Equal Protection Clause.[159] In Craig v. Boren (1976),[160] the Court ruled that statutory oradministrative sex classifications had to be subjected to an intermediate standard of judicial review.[161] Reed and Craig laterserved as precedents to strike down a number of state laws discriminating bygender.[159]

Since Wesberry v. Sanders (1964)[162] and Reynolds v. Sims (1964),[163] the Supreme Court has interpreted theEqual Protection Clause as requiring the states to apportion theircongressional districts and state legislative seats according to "one man, one vote".[164] The Court has also struck downredistricting plans in which race was a key consideration. In Shaw v. Reno (1993),[165] the Court prohibited a North Carolinaplan aimed at creating majority-black districts to balance historicunderrepresentation in the state's congressional delegations.[166]

TheEqual Protection Clause served as the basis for the decision in Bush v. Gore (2000),[167] in which the Court ruled that noconstitutionally valid recount of Florida's votes in the 2000 presidential election could be heldwithin the needed deadline; the decision effectively secured Bush's victory inthe disputed election.[168] In League of United Latin AmericanCitizens v. Perry (2006),[169] the Court ruled that House Majority Leader Tom DeLay's Texas redistricting planintentionally diluted the votes of Latinos and thus violated the EqualProtection Clause.[170]