The Equal Protection Clause and Immutability - The Characteristics of Suspect Classifications

Abstract

The Fourteenth Amendment mandates that no state “shall . . . deny to any person within its jurisdiction the equal protection of the laws,” thereby ensuring that citizens will receive “equality of protection under the law.” The United States Supreme Court has long struggled to define the restriction the Equal Protection Clause places on the government and precisely to whom the clause’s protection extends. One strand of equal protection theory holds that classifications based upon a select set of specific criteria are “constitutionally suspect” and therefore subject to “‘the most rigid scrutiny.’” Yet no precise description of the types of classifications that are necessarily suspect has been achieved. By taking a unique perspective on the Equal Protection Clause informed by the philosophy of John Rawls, this Article delineates more clearly which classifications ought to be treated as suspect given the characteristics upon which they are based. This Article defends the view that some classifications should trigger heightened scrutiny, specifically if the legislature relies upon certain types of immutable characteristics to draw lines in society. In so doing, it offers a clear way forward for equal protection theory and breaks the existing stalemate between the two leading theories of suspect classifications - traditional theories which proscribe any form of discrimination and antisubordination theories which, as first formulated by Owen M. Fiss, posit that classifications run afoul of the Equal Protection Clause if they run contrary to the interests of certain long-disfavored social groups. In turn, this Article suggests a new, more analytically sound role for strict scrutiny analysis.