A Long Overdue Summary on Equal Protection

Apologies for the delay in posting…

To establish a baseline on discussions like gay marriage, it’s important that we work from the same vocabulary. Here’s my attempt to provide that, in the form of a basic primer on equal protection law in America. Because I’m striving for a balance between comprehensive, technical accuracy and accessibility, I’m sure to go amiss at some point, but I’m always happy to clarify.

To start, the Fourteenth Amendment’s Equal Protection Clause (“[N]or shall any state… deny to any person within its jurisdiction the equal protection of the laws”) potentially covers any situation where the legislature, state or federal, distinguishes between “persons.”

Of course, most legislation classifies. To withdraw from the legislature the tool of classification would be to end the legislature. Acknowledging this difficulty, the default position in equal protection law is deference: if a statute classifies, but is rationally related to a legitimate government interest, the statute shall be sustained. Most legislation receives (and passes) this cursory level of analysis.

As a result, the question when approaching a new equal protection question isn’t “why is the legislature’s act unconstitutional?,” but, rather, “what reason do we have to doubt its constitutionality?” Remember this as we go forward: unless a restrictive statute implicates some “suspect class,” as explained later on, the presumption is that the statute is valid.

History informs the Clause’s further applications. It was drafted to protect newly freed African-Americans from the caprices of a majority bent on instituting de facto slavery and, consequentially, post-Brown v. Board of Education, legislation that classifies on the basis of race shall almost surely fail, unless it is the least restrictive means to accomplish a compelling state interest, and narrowly tailored to that end.  Race-based classification is “suspect” — when the legislature classifies on the basis of race, we are justified in being suspicious.

But why is race special? First, race is a trait that is identifiable, and shared at the class level. Because the Equal Protection Clause is concerned with the subordination of individuals based on group status, that the trait confers group status is significant. Second, race is immutable. One is born into a race, and if they can change their appearance, their history remains tied to the race. Third, race rarely if ever actually matters when evaluating an individual’s “value,” and the legislature’s legitimate interest in classifying based on race is therefore quite small. Fourth, and finally, history demonstrates that individuals have often been made to unjustly suffer for their race: history justifies suspicion. Ergo, race is a “suspect classification,” and racial minorities constitute a “protected class,” deserving special protection.

Race isn’t the only “protected class.” Traditionally, classifications based on ethnicity, national origin, and religion are also suspect. Classifications based on gender occupy a middle ground, because gender is often a proxy for significant traits (e.g., ability to become pregnant).

Further, it’s possible to generalize from the traits that make racial minorities “protected” to determine when a new “protected class” should be carved out. Here is where the debate should center on gay marriage: is there a sexuality-race analogy? If so, is it enough to be able to fairly call gay men & women a “protected class”? I will argue “yes” — and so will almost the entire legal academy.

When considering questions of equal protection, remember that the touchstone of equal protection law is group status, not individual action. It’s meaningless to speak of “a group of people who want a cookie” as a protected class, because to classify upon the basis of the shared trait would be, really, to classify on the basis of a shared action. Conduct is only significant in the equal protection context when it merges with status.

Unless you want to talk about the Due Process Clause. Which I don’t.



  1. Informative post.

    We know it is permissable for the state to deny access to an institution to members of a protected class so long as the criteria is compelling (ex. you must be 21 to drink alcohol). In that case the state ‘discriminates’ uniformly across all protected classes and has a compelling reason to do so, so no harm is done.


    Is there ever an instance where the state can discriminate against one spcific sub-group of a protected class and not apply that discrimination across all protected classes? To take that concept one step further is it ever permissable for the state to deny or restrict access to an institution to the entire membership of a single protected class while allowing it for others?

  2. I’m trying to answer in the abstract, but it’s hard :). Could you give me an example — even if it’s not the one I think you’re thinking of?

    1. Well maybe the first question was extremely unlikely. So let’s look at the second: Women are restricted from combat, but this restriction is not applied to any other group. I’m also thinking of the way that those under a certain age are blocked from social security.

  3. Your mention of women in the military and combat reminded me of the Selective Service System, and how women are not required allowed to register for the draft.

    Not that women have sued to be allowed to register, but men have sued – Rostker v. Goldberg – and as we know it was found that this does not violate due process. Interestingly, the argument rests in part on the exclusion of women from combat being constitutional, which of course then means that women are less useful to the military than men.

  4. What about a technical legal argument for same-sex marriage based on gender, not sexual orientation?

    The sexual orientation approach is defined by the couple wanting the same benefits of marriage. But a gender-based argument would concern the individual, saying, “I, as a man, can’t marry that man, but any woman could.” I suppose it might be troubled by the fact that marriage is a symetric contract, and so everyone has access to the contract in general, though not a particular person because of gender.

    1. I think the gender argument actually hurts gays. The counter-argument is that any man can marry a woman and vice versa, so they aren’t being harmed as a class. The law allows for legal discrimination or restrictions on access to institutions so long as that restriction is applied equally across all classes. So if sexual orientation were not considered a protected class then it would be okay to deny marriage to men seeking men so long as it was applied to all classes equally (race, religion, etc).

  5. I’m going to share an honest moment here: I’ve been thinking about this one all afternoon and I am actually rethinking my position (more thought required but moving in a new direction). Here’s my understanding an Ames can correct me if I am wrong on the legal mumbo-jumbo.

    Essentially we all agree that marriage itself is a social construct. We further agree that monogamy is also a social construct. So then we have monogamous marriage. If I understand the nature of protected classes, it is allowable to create arbitrary barriers to a social institution so long as they are applied equally across all classes. For example, the drinking age is 21 which is an arbitrary barrier. That is an okay form of discrimination so long as it is applied equally across all protected classes (catholics can’t drink under 21, men can’t drink under 21, blacks can’t drink under 21, etc). What is NOT okay is denying access to a part of or an entire protected class without applying this same restriction across the board. So for instance if we made the drinking age 21 but lowered it for Catholics and blacks, that would be unfair.

    Gays aren’t asking to change the social constructs themselves, just to eliminate a barrier that is unconstitutionaly applied to an entire class of people. For polygamy to work we would have to create a new social construct i.e. plural marriages. Then access could be granted to whatever parties society chooses, so long as all equivelant protected classes get access. If society decides to create legal plural marriages, that’s okay as long as the criteria for access is applied equally across all protected classes.

    Sound right?

    1. For polygamy to work we would have to create a new social construct i.e. plural marriages.

      Bingo! I think I was arguing this in so many words earlier – the state (federal and most state governments) currently extends civil recognition of marriage to couples, unless they are same-sex couples, who by nature would not be interested in someone of the opposite sex.

      I’m not sure where the roots lie for legal recognition of marriage or the empowerment of religious and secular officials as agents of the state to officiate weddings for couples – maybe we just carried statues over from Europe? Bottom line, there’d have to be a sea change in our culture for polygamy to become a new model – maybe if Saudi Arabia conquers us? It certainly hasn’t happened after six years of legal same-sex marriage here in Massachusetts. It’s such a non-issue in general.

      The other thing to consider, watching the current goings-on in my home state of New Jersey, where MANY clergy members spoke in favor of the new civil marriage equality bill, is that a number of religions DO bless same-sex unions, although they can’t legally confer marriage upon these couples. Thus the majority is infringing on the ceremonies of some churches and the powers of some clergy as agents of the state, too.

  6. [I]t is allowable to create arbitrary barriers to a social institution so long as they are applied equally across all classes.

    This doesn’t actually seem to work. It appears rather that there are some instances where it is acceptable to discriminate against one protected class in particular and discrimination against any other class would be unacceptable. We can restrict all young people from driving, but we cannot restrict all black people from driving and that’s not because we already restrict access by age. It’s not that the first one is free and any subsequent one is the problem, just that depending on the situation, some are justifiable and allowed, and some are not.

    As for plural marriages, I think part of the question is how would it be done. If it is a communal contract that defines a marriage as being between a man and woman and a woman and a man… etc. then that is clearly a very different social institution from the one we currently have that is defined as between couples, as you said. This, however, is not how I understand the dominant practice of plural marriage to be, though it would seem to be an appropriate abstraction of the idea of marriage to multiple parties.

    As I understand it, the common idea of plural marriage would lift the restriction that you can only have one two-person marriage at a time. Lifting this restriction wouldn’t exactly require a new social institution, but it isn’t justifable in any was as an extension of arguing that the contract should be gender neutral.

    1. This doesn’t actually seem to work. It appears rather that there are some instances where it is acceptable to discriminate against one protected class in particular and discrimination against any other class would be unacceptable.

      If you’re right about that then that would knock the legs out from under the gay marriage lobby completely.

      1. Well, when it is acceptable to discriminate against that one class, it’s with justification. The justification for restricting all young people from driving is that young people, as a class, would be bad drivers, and it would be unreasonable for the state to take on the burden of selecting the few in that class that are atypical. In general, I would think the burden is on the state to show that the discrimination is warranted. The question is not “what is the state interest allowing gays to marry” but rather “what is the state interest in not allowing gays to marry.”

        1. I would expand on that even further and say that if access to the institution has more potential for harm than good (drinking alcohol, for example) then the responsibility to justify access falls on those seeking it. If the institution has more potential for good (marriage) then it falls on the state to justify prohibitions. But then I think about selective denial of access, like blue laws. How do the courts interpret legislated morality? Is it okay because it affects all protected classes in that jurisdiction?

  7. Honestly, though, I have a hard time fully convincing myself that opposite-sex marriage does run afoul of due process. Or, if I can do that, I’m still not comfortable with it as anything like a slam-dunk argument.

    I really do prefer to think of this as a rational, even moral, issue. I would like to think that my fellow citizens could consider this issue of civil marriage without being influenced by their religion or presonal prejudices. And I mean prejudices without any negative connotations. I just mean it’s “ok” for someone to be personally skeezed out by gay people, but that’s no basis for decisions of civil law. Forbidding gay marriage will not make gays go away, and allowing it will not cause there to be suddenly 10 times more gays. Of course, it’s a fantasy to ask that everyone be rational and dispassionate.

    1. Well yes, ideally social issues are legislated without such a strict reading of the law necessary, but gay marriage is much like civil rights in that the opposition is still so strong that wide progress can only be made through the SC. If they go the state-by-state route it will still be illegal in most of the South thirty years from now.

  8. […] finally put that law degree to work and put together a very straight-forward and easy to understand summary of some of the legal language surrounding gay […]

%d bloggers like this: