The Equal Protection Clause

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The Fourteenth Amendment states in relevant part, “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” Theequal protection clause applies to the stategovernment. State constitutions generally have a similar provision. 1The equal protection clause prevents the state government from enacting criminal laws that discriminate in an unreasonable and unjustified manner. The Fifth Amendment due process clause prohibits the federal government from discrimination if the discrimination is so unjustifiable that it violates due process of law. 2

The prohibition on governmental discrimination is not absolute; it depends on the class of persons targeted for special treatment. In general, court scrutiny is heightened according to a sliding scale when the subject of discrimination is an arbitrary classification. Arbitrary means random and often includes characteristics an individual is born with, such as race or national origin. The most arbitrary classifications demand strict scrutiny, which means the criminal statute must be supported by a compelling government interest. Statutes containing classifications that are not arbitrary must have a rational basis and be supported by a legitimate government interest.

Criminal statutes that classify individuals based on their race must be given strict scrutiny because race is an arbitrary classification that cannot be justified. Modern courts do not uphold criminal statutes that classify based on race because there is no government interest in treating citizens of a different race more or less harshly. 3

Criminal statutes that have a rational basis for discrimination and are supported by a legitimate government interest candiscriminate, and frequently do. Criminal statutes that punish felons more severely when they have a history of criminal behavior, for example, three-strikes statutes, are supported by the legitimate government interests of specific and general deterrence and incapacitation. Note that the basis of the discrimination, a criminal defendant’s statusasa convictedfelon, is rational, not arbitrary like race. Thus although these statutes discriminate, they are constitutional pursuant to the equal protection clause.

Figure 3.4 The Equal Protection Clause 

 

KEY TAKEAWAYS

• The Bill of Rights is the first ten amendments to the Constitution and contains many protections for criminal defendants.
• Selective incorporation applies most of the constitutional protections in the B ill of Rights to the states.
• Substantive due process protects criminal defendants from unreasonable government intrusion on their substantive constitutional rights. Procedural due process provides criminal defendants with notice and an opportunity to be heard before imposition of a criminal punishment.
• A statute that is void for vagueness is so imprecisely worded that it gives too much discretion to law enforcement, is unevenly applied, and does not provide notice of what is criminal. A statute that is overbroad includes constitutionally protected conduct and therefore unreasonably encroaches upon individual rights.
• The equal protection clause prevents the state government from enacting criminal laws that arbitrarily discriminate. The Fifth Amendment due process clause extends this prohibition to the federal government if the discrimination violates due process of law.

EXERCISES

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. A local ordinance makes it a misdemeanor to dress in “gang attire.” Is this ordinance constitutional? Why or why not?
2. Read Smith v.Goguen, 415 U.S. 566 (1974). Why did the US Supreme Court strike down the Massachusetts flag misuse statute? The case is available at this link: https://scholar.google.com/scholar_case?case=14723025391522670978&hl=en&as_sdt=2&as_vis=1&oi=scholarr
3. Read Graynedv. City ofRockford, 408 U.S. 104 (1972). In Grayned, the US Supreme Court analyzed an ordinance prohibiting individuals from willfully making a noise or disturbance on grounds adjacent to a school building that disturbs the peace or good order of the school session. Did the Court hold that this ordinance was constitutional? Why or why not? The case is available at this link: https://supreme.justia.com/cases/federal/us/408/104/case.html
4. Read Justice Sandra Day O’Connor’s concurring opinion in Lawrencev. Texas, 539 U.S.558 (2003). Why did Justice O’Conner feel that Texas’s sodomy law was unconstitutional? The case is available at this link: https://www.law.cornell.edu/supct/html/02-102.ZC.html