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Constitutional Law • Equal Protection
CONLAW#110
Legal Definition
Classifications involving gender and legitimacy are subject to intermediate scrutiny and require an exceedingly persuasive justification. If a law is facially neutral, one must demonstrate both discriminatory impact and discriminatory intent.
Plain English Explanation
Imagine you live in a town where the local park has a rule: Blue swings are for boys and pink swings are for girls. This seems straightforward but unfair, right? What if you're a boy who likes pink or a girl who likes blue? Or what if there aren't enough swings for everyone? This kind of rule doesn't seem to make sense and feels unfair.
Now, let's say the park officials argue, "We did it to make the park prettier and more organized." They need to provide a super convincing reason why separating swings by color (and, by extension, gender) is absolutely necessary for the park's goal. This is a bit like what the government has to do when it makes laws that treat people differently based on their gender or whether their parents were married when they were born. The government must have a really good reason for these kinds of rules.
But what if the park had a rule that seemed fair, like "You must be this tall to swing," yet it turned out that most of the shorter kids were from one particular neighborhood? If someone wanted to challenge this rule, they'd have to show that the rule not only unfairly impacts these kids but that the park officials also intended to leave these particular kids out.
This is similar to laws under the Equal Protection Clause regarding gender and legitimacy. If a law is not directly about gender or whether your parents were married but ends up unfairly affecting people based on these things, you have to prove that this was both the intended outcome and actually what happens. This ensures that all laws are fair and necessary, especially when they could lead to different treatment of people based on personal characteristics like gender or family status.
Now, let's say the park officials argue, "We did it to make the park prettier and more organized." They need to provide a super convincing reason why separating swings by color (and, by extension, gender) is absolutely necessary for the park's goal. This is a bit like what the government has to do when it makes laws that treat people differently based on their gender or whether their parents were married when they were born. The government must have a really good reason for these kinds of rules.
But what if the park had a rule that seemed fair, like "You must be this tall to swing," yet it turned out that most of the shorter kids were from one particular neighborhood? If someone wanted to challenge this rule, they'd have to show that the rule not only unfairly impacts these kids but that the park officials also intended to leave these particular kids out.
This is similar to laws under the Equal Protection Clause regarding gender and legitimacy. If a law is not directly about gender or whether your parents were married but ends up unfairly affecting people based on these things, you have to prove that this was both the intended outcome and actually what happens. This ensures that all laws are fair and necessary, especially when they could lead to different treatment of people based on personal characteristics like gender or family status.
Hypothetical
Hypo 1: Hypofornia passes a law saying only men can apply for certain government jobs that are considered physically demanding. Amy, who is highly qualified for one of these jobs, is denied the opportunity to apply because of her sex. Result: Under intermediate scrutiny, the government of Hypofornia would need to provide an exceedingly persuasive justification for this gender-based classification. Since physical ability can vary widely among individuals regardless of gender, it's unlikely that such a justification could be deemed sufficient. Therefore, this law would likely be considered unconstitutional as it does not adequately justify the gender-based discrimination.
Hypo 2: New Hypoland enacts a statute that grants certain tax benefits only to children born to married parents, excluding those born to unmarried parents. Bob, a single father, challenges the law as his child is ineligible for these benefits. Result: Since this law classifies based on the legitimacy of birth, it must meet intermediate scrutiny by showing an exceedingly persuasive justification for the distinction. The law would likely fail this test as there are few, if any, compelling reasons to deny benefits based on the marital status of a child's parents, making the statute likely unconstitutional.
Hypo 3: A new policy requires all employees in a government office in Hypofornia to shave their heads for "hygiene reasons," without considering the different impact on male and female employees. Amy, a female employee, finds this requirement discriminates against women, who generally do not shave their heads for cultural reasons. Result: For this policy to stand, the government must show it has both a discriminatory impact (primarily affecting women) and discriminatory intent (aiming to discriminate against women). If Amy can prove these elements, the policy could be deemed unconstitutional under the Equal Protection Clause because it fails to consider its disparate impact on gender without a sufficiently persuasive justification.
Hypo 4: New Hypoland passes a law that requires a minimum height of 6 feet for all firefighters, which disproportionately disqualifies female candidates. Amy challenges the law, claiming it discriminates based on gender. Result: Although the law is facially neutral (not mentioning gender), Amy must prove it both disproportionately impacts women and that it was enacted with the intent to discriminate based on gender. If the intent to discriminate can't be proven, the law might still be challenged as not being the least restrictive means to ensure firefighter capabilities, potentially failing the test for gender-based discrimination if a more direct measure of ability could be used.
Hypo 2: New Hypoland enacts a statute that grants certain tax benefits only to children born to married parents, excluding those born to unmarried parents. Bob, a single father, challenges the law as his child is ineligible for these benefits. Result: Since this law classifies based on the legitimacy of birth, it must meet intermediate scrutiny by showing an exceedingly persuasive justification for the distinction. The law would likely fail this test as there are few, if any, compelling reasons to deny benefits based on the marital status of a child's parents, making the statute likely unconstitutional.
Hypo 3: A new policy requires all employees in a government office in Hypofornia to shave their heads for "hygiene reasons," without considering the different impact on male and female employees. Amy, a female employee, finds this requirement discriminates against women, who generally do not shave their heads for cultural reasons. Result: For this policy to stand, the government must show it has both a discriminatory impact (primarily affecting women) and discriminatory intent (aiming to discriminate against women). If Amy can prove these elements, the policy could be deemed unconstitutional under the Equal Protection Clause because it fails to consider its disparate impact on gender without a sufficiently persuasive justification.
Hypo 4: New Hypoland passes a law that requires a minimum height of 6 feet for all firefighters, which disproportionately disqualifies female candidates. Amy challenges the law, claiming it discriminates based on gender. Result: Although the law is facially neutral (not mentioning gender), Amy must prove it both disproportionately impacts women and that it was enacted with the intent to discriminate based on gender. If the intent to discriminate can't be proven, the law might still be challenged as not being the least restrictive means to ensure firefighter capabilities, potentially failing the test for gender-based discrimination if a more direct measure of ability could be used.
Visual Aids
Related Concepts
The Equal Protection Clause applies to which actions?
Under the Equal Protection Clause, what level of scrutiny is applied to alienage?
Under the Equal Protection Clause, what level of scrutiny is applied to all other classifications beside fundamental right, suspect, and quasi-suspect?
Under the Equal Protection Clause, what level of scrutiny is applied to everything else?
Under the Equal Protection Clause, what level of scrutiny is applied to fundamental rights or suspect classifications?
Under the Equal Protection Clause, what level of scrutiny is applied to laws benefitting women?
Under the Equal Protection Clause, what level of scrutiny is applied to quasi-suspect classification?
Under the Equal Protection Clause, what level of scrutiny is applied to race or national origin?
Under the Equal Protection Clause, what level of scrutiny is applied to undocumented alien children?
Under the Equal Protection Clause, what level of scrutiny is applied to undocumented aliens?
What is the Equal Protection Clause?
