In
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a State (polity), state, namely, the executive (government), executive, the parliament or legislature, and the judiciary; as well as th ...
, a suspect classification is a class or group of persons meeting a series of criteria suggesting they are likely the subject of discrimination. These classes receive closer scrutiny by courts when an
Equal Protection
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equa ...
claim alleging
unconstitutional
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
discrimination is asserted against a law, regulation, or other government action, or sometimes private action. When a law or government action affects a group that falls under a "suspect classification," courts apply the
strict scrutiny
In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
standard in reviewing the constitutional validity of a law or action.
Criteria
The United States Supreme Court has mentioned a variety of criteria that, in some combination, may qualify a group as a suspect class, but the Court has not declared that any particular set of criteria are either necessary or sufficient to qualify.
[Wintemute, Robert, ]
Sexual Orientation and Human Rights
' (1995)
Some of the criteria that have been cited include:
* The group has historically been discriminated against or have been subject to prejudice, hostility, or stigma, perhaps due, at least in part, to stereotypes.
* They possess an
immutable
In object-oriented and functional programming, an immutable object (unchangeable object) is an object whose state cannot be modified after it is created.Goetz et al. ''Java Concurrency in Practice''. Addison Wesley Professional, 2006, Section 3.4 ...
Lyng v. Castillo
' (1986) or highly visible trait.
* They are powerless
to protect themselves via the political process. (The group is a "discrete" and "insular" minority.)
* The group's distinguishing characteristic does not inhibit it from contributing meaningfully to society.
Classification
Suspect class
The Supreme Court established the judicial precedent for suspect classifications in the cases of ''
Hirabayashi v. United States
''Hirabayashi v. United States'', 320 U.S. 81 (1943), was a case in which the Supreme Court of the United States, United States Supreme Court held that the application of curfews against members of a minority group were constitutional when the nati ...
'', 320 U.S. 81 and ''
Korematsu v. United States
''Korematsu v. United States'', 323 U.S. 214 (1944), was a landmark decision by the Supreme Court of the United States to uphold the exclusion of Japanese Americans from the West Coast Military Area during World War II. The decision has been wid ...
'', 323 U.S. 214 (1944). The Supreme Court recognizes
race
Race, RACE or "The Race" may refer to:
* Race (biology), an informal taxonomic classification within a species, generally within a sub-species
* Race (human categorization), classification of humans into groups based on physical traits, and/or s ...
,
national origin
National origin is the nation where a person was born, or where that person's ancestors came from. It also includes the diaspora of multi-ethnic states and societies that have a shared sense of common identity identical to that of a nation while ...
,
religion
Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatural, ...
and alienage as suspect classes; it therefore analyzes any government action that discriminates against these classes under
strict scrutiny
In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
.
In ''
Perry v. Schwarzenegger
Perry, also known as pear cider, is an alcoholic beverage made from fermented pears, traditionally the perry pear. It has been common for centuries in England, particularly in Gloucestershire, Herefordshire, and Worcestershire. It is also mad ...
'', the
U.S. District Court for the Northern District of California
The United States District Court for the Northern District of California (in case citations, N.D. Cal.) is the federal United States district court whose jurisdiction comprises the following counties of California: Alameda, Contra Costa, Del ...
in its Findings of Fact commented that
sexual orientation
Sexual orientation is an enduring pattern of romantic or sexual attraction (or a combination of these) to persons of the opposite sex or gender, the same sex or gender, or to both sexes or more than one gender. These attractions are generall ...
could be considered a suspect class, but on the facts presented Proposition 8 failed even to satisfy the much more deferential rational basis review. The
U.S. District Court for the District of Nebraska
The United States District Court for the District of Nebraska (in case citations, D. Neb.) is the federal district court whose jurisdiction is the state of Nebraska. Court offices are in Omaha and Lincoln.
Appeals from the District of Nebrask ...
held the same in ''
Citizens for Equal Protection v. Bruning
''Citizens for Equal Protection v. Bruning'', 455 F.3d 859 (8th Cir. 2006), was a federal lawsuit filed in the United States District Court for the District of Nebraska and decided on appeal by the United States Court of Appeals for the Eighth Circ ...
'', but was reversed on appeal by the
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit (in case citations, 8th Cir.) is a United States federal court with appellate jurisdiction over the following United States district courts:
* Eastern District of Arkansas
* Western Dis ...
.
As the law currently stands, neither sexual orientation nor gender identity is considered a federal suspect class, although many states do consider them such.
Alienage
Alienage
In law, an alien is any person (including an organization) who is not a citizenship, citizen or a nationality, national of a specific country, although definitions and terminology differ to some degree depending upon the continent or region. ...
, or the state of being an alien, i.e. a non-citizen of the United States, is a unique category. For purposes of
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
law,
legal aliens are a suspect class (''
Graham v. Richardson'', 403 U.S. 365 (1971)). As such, state actions are analyzed according to strict scrutiny. In contrast, because the
United States Congress
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...
has the power to regulate
immigration
Immigration is the international movement of people to a destination country of which they are not natives or where they do not possess citizenship in order to settle as permanent residents or naturalized citizens. Commuters, tourists, and ...
,
federal
Federal or foederal (archaic) may refer to:
Politics
General
*Federal monarchy, a federation of monarchies
*Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
government action that discriminates based on alienage will receive
rational basis scrutiny
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendmen ...
. State acts that affect
unlawful immigrants are generally analyzed with rational basis review unless the topic is education of children, in which case they are analyzed under intermediate scrutiny based on ''
Plyler v. Doe ''Plyler v. Doe'', 457 U.S. 202 (1982), was a case in which the Supreme Court of the United States struck down both a state statute denying funding for education of undocumented immigrant children in the United States and an independent school distr ...
'', 457 U.S. 202 (1982).
Quasi-suspect class
Intermediate scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous).
In order t ...
is applied to groups that fall under a "quasi-suspect classification." Sex and
legitimacy of birth have been held to be quasi-suspect classes. In 2012, the
U.S. District Court for
Northern California discussed this type of classification, but applied heightened scrutiny without specifically labeling gays and lesbians a suspect or quasi-suspect class in its decision. Striking down Section 3 of
DOMA
The Defense of Marriage Act (DOMA) was a United States federal law passed by the 104th United States Congress and signed into law by President Bill Clinton. It banned federal recognition of same-sex marriage by limiting the definition of marri ...
as unconstitutional in ''
Windsor v. United States'' (2012), the
2nd Circuit Court of Appeals held sexual orientation to be a quasi-suspect classification, and determined that laws that classify people on such basis should be subject to intermediate scrutiny. It was the first time a federal court had applied quasi-suspect classification in a sexual orientation case. The Supreme Court, however, has not decided whether sexual orientation fits into any identified class.
All others
Rational basis scrutiny
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendmen ...
is applied to all other discriminatory statutes. Rational basis scrutiny currently covers all other discriminatory criteria—''e.g.'',
age
Age or AGE may refer to:
Time and its effects
* Age, the amount of time someone or something has been alive or has existed
** East Asian age reckoning, an Asian system of marking age starting at 1
* Ageing or aging, the process of becoming older ...
,
disability
Disability is the experience of any condition that makes it more difficult for a person to do certain activities or have equitable access within a given society. Disabilities may be Cognitive disability, cognitive, Developmental disability, dev ...
, wealth, political preference, political affiliation, or criminal conviction.
Levels of judicial review
Strict scrutiny
To satisfy the strict scrutiny, suspect classifications such as race, alienage, or national origin must be necessary to promote a compelling state interest when there is no less restrictive alternative method available to accomplish the government (state's) interest.
The practical result of this legal doctrine is that government sponsored discrimination on the account of a citizen's
race
Race, RACE or "The Race" may refer to:
* Race (biology), an informal taxonomic classification within a species, generally within a sub-species
* Race (human categorization), classification of humans into groups based on physical traits, and/or s ...
, skin
color
Color (American English) or colour (British English) is the visual perceptual property deriving from the spectrum of light interacting with the photoreceptor cells of the eyes. Color categories and physical specifications of color are associ ...
,
ethnicity
An ethnic group or an ethnicity is a grouping of people who identify with each other on the basis of shared attributes that distinguish them from other groups. Those attributes can include common sets of traditions, ancestry, language, history, ...
,
religion
Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatural, ...
, or
national
National may refer to:
Common uses
* Nation or country
** Nationality – a ''national'' is a person who is subject to a nation, regardless of whether the person has full rights as a citizen
Places in the United States
* National, Maryland, ce ...
origin is almost always unconstitutional, unless it is a compelling, narrowly tailored and temporary piece of legislation dealing with
national security
National security, or national defence, is the security and defence of a sovereign state, including its citizens, economy, and institutions, which is regarded as a duty of government. Originally conceived as protection against military atta ...
, defense, or
affirmative action. ''
Korematsu v. United States
''Korematsu v. United States'', 323 U.S. 214 (1944), was a landmark decision by the Supreme Court of the United States to uphold the exclusion of Japanese Americans from the West Coast Military Area during World War II. The decision has been wid ...
'', regarding Japanese internment, and ''
Grutter v. Bollinger
''Grutter v. Bollinger'', 539 U.S. 306 (2003), was a landmark case of the Supreme Court of the United States concerning affirmative action in student admissions. The Court held that a student admissions process that favors "underrepresented minor ...
'', upholding affirmative action based upon racial diversity, are the only cases in which a racially discriminatory law has been upheld under the strict scrutiny test.
Strict scrutiny is also applied to restrictions of any
fundamental right
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
, regardless of the group involved.
Intermediate scrutiny
When
intermediate scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous).
In order t ...
is involved, the courts are more likely to oppose the discriminatory law when compared to a rational basis review particularly if a law is based on gender. However, a court will likely uphold a discriminatory law under intermediate scrutiny if the law has an exceedingly persuasive justification and applies to real, fact-based, or biological differences between the sexes.
Mississippi University for Women v. Hogan
''Mississippi University for Women v. Hogan'', 458 U.S. 718 (1982), was a landmark decision of the Supreme Court of the United States, decided 5–4, which ruled that the single-sex admissions policy of the Mississippi University for Women viol ...
, 102 S.Ct. 3331 (1982),
Nguyen v. INS
''Nguyen v. INS'', 533 U.S. 53 (2001), was a United States Supreme Court case in which the Court upheld the validity of laws relating to U.S. citizenship at birth for children born outside the United States, out of wedlock, to an American parent. ...
, 121 S.Ct. 2053 (2001).
Rational basis
When
rational basis review
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment ...
is used, it means that the classification is one that overwhelmingly tends to be rational, e.g. distinguishing criminals from non-criminals. This leads to wide political discretion and a focus of judicial resources to other cases where the classification employed tends to be more suspicious, and thus close judicial balancing is needed.
Classifications under state law
The
Supreme Court's holdings impose a minimum standard to which each
State
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
must adhere. Hence, a State law that discriminates against citizens because of their race, must be reviewed by the applicable State and inferior
federal courts
Federal court may refer to:
United States
* Federal judiciary of the United States
** United States district court, a particular federal court
Elsewhere
* Federal Court of Australia
* Federal courts of Brazil
* Federal Court (Canada)
* Federal co ...
using the strict scrutiny basis of review. A State may, generally, choose to give its citizens more rights or protections than the minimum
federal
Federal or foederal (archaic) may refer to:
Politics
General
*Federal monarchy, a federation of monarchies
*Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
standard when considering state law. For example, in 2008 the
Supreme Court of California
The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sacra ...
used the strict scrutiny basis of review to strike down a
California
California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
statute denying legal recognition of same-sex marriages.
California
California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
classifies sexual orientation as a suspect class under state law.
Connecticut
Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York to the west, and Long Island Sound to the south. Its cap ...
and
Iowa
Iowa () is a state in the Midwestern region of the United States, bordered by the Mississippi River to the east and the Missouri River and Big Sioux River to the west. It is bordered by six states: Wisconsin to the northeast, Illinois to the ...
classify sexual orientation as a quasi-suspect class under their respective state laws.
[Stewart, Chuck, ]
Homosexuality and the Law: A Dictionary
' (2001)
See also
*
Tyranny of the majority
The tyranny of the majority (or tyranny of the masses) is an inherent weakness to majority rule in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions. This results in oppres ...
References
{{US14thAmendment
Civil rights and liberties
*
Legal doctrines and principles
Anti-discrimination law in the United States