Equal Protection Clause, Classifications, and
Standards of Judicial Review
(How Do Unjust Laws Get Reviewed and Overturned by the Courts?)
14th Amendment to the Constitution: All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
Classification and Suspect Classification:
 Classification: laws affecting a group with a common trait or professional standard:
ex. minors, drivers, accountants, broadcasters, etc.
 Suspect Classification: group with a common trait AND a history of being denied fundamental rights:
ex. currently recognized are race, national origin, and religion.
Rational Review
a. lowest standard for reviewing and upholding a law
b. law must be reasonably related to a legitimate interest in differential treatment of persons on the
basis of age, occupation (drinking age, school attendance, professional licensing requirements)
c. plaintiff holds burden of proof to strike down law
d. law assumed to be constitutional unless proven otherwise by plaintiff
e. laws subjected to rational review are likely to be upheld even if arguably unjust.
Strict Scrutiny:
a. highest standard for reviewing and upholding a law
b. classificatory system relates to a “suspect classification” of race, religion, national origin
c. law relates to classifications burdening fundamental rights (voting rights, interstate migration,
access to the courts, other rights recognized as fundamental)
d. law must be proven to serve a compelling government interest, necessary to serving that interest,
and the least restrictive manner of serving that interest.
e. government holds burden of proof for upholding a law
f. law assumed to be unconstitutional unless proven otherwise by government
g. laws subjected to strict scrutiny are likely to be overturned as unconstitutional
------------------------------------------------------------------------------------------------------------------------------Heightened or Intermediate Scrutiny:
a. third, intermediate standard established in 1976
b. classificatory system relates to a “quasi-suspect classification” of gender or illegitimacy
c. government holds burden of proof for upholding a law
d. law must serve an important state interest and the classification is substantially related to that
interest
Second-order rational basis:
a. another intermediate standard implied by the court in several cases but it remains undefined
b. classification includes “mentally retarded individuals,” homosexual, and innocent children of illegal
aliens
Does the law under
review relate to a
fundamental right:
• If not, then rational basis review is used
voting rights, interstate
migration, access to the courts,
other rights recognized as
fundamental?
If yes,
•law must be reasonably related to a legitimate government
purpose in differential treatment of persons on the basis of age,
occupation (drinking age, school attendance, professional
licensing requirements)
•plaintiff holds burden of proof to strike down law
•law assumed to be constitutional unless proven otherwise by
plaintiff
Unjust law gets a green
light. Laws reviewed under
rational basis review are
likely to be upheld even if
they are arguably unjust.
Does the law under
review relate to a
suspect classification:
race, religion, or national origin?
If yes,
• If not, rational basis review is used as above
unless a judge invokes intermediate levels
of scrutiny.
IF YES TO BOTH QUESTIONS ABOVE, STRICT SCRUTINY IS APPLIED, AND THE LAW UNDER REVIEW IS
MORE LIKELY TO BE OVERTURNED AND FOUND UNCONSTITUTIONAL. However, if courts are undecided
about the definition of a fundamental right or a suspect class, they may invoke an intermediate level of review.
Does the lacompelling
Strict scrutiny is used to
review the law
•law must be proven to serve a compelling government
interest, necessary to serving that interest, and the least
restrictive manner of serving that interest
•government holds burden of proof for upholding a law
•law assumed to be unconstitutional unless proven
otherwise by government
Unjust law gets the red
light. Laws reviewed
under strict scrutiny are
likely to be overturned if
there is any hint of
injustice.
Is the law related to a right
arguably fundamental (but not
established as such) and a
"quasi-suspect" class: women,
"mentally retarded individuals,"
homosexuals, and innocent
children of illegal aliens?
• Heightened, intermediate scrutiny,
or second order rational basis may
be used to review the law
•government holds tht burden of proof for upholding
law
•law must serve an important interest and the
restrictions on the class of persons must be
substantially related to that interest.