1. History of Equal Protection
2. How Equal Protection is Upheld by the Court
3. Strict Scrutiny
4. Intermediate Scrutiny
5. Rationality Review

The equal protection definition states that every person has the right to be treated fairly and equally in every encounter with the law and the courts. It is stated in the 14th amendment of the Constitution, and its main purpose is to guarantee equal treatment for all citizens, as a fundamental part of a fair justice system. It also protects the country's citizens against unfair differences in pay for the same work and against unfair taxation.

The Equal Protection Clause does not, however, guarantee that everyone will get the same outcome. What it guarantees is equal representation and interpretation of the law regardless of the individual.

History of Equal Protection

The Equal Protection Clause has its roots in the times after the Civil War, when slaves were emancipated and the entire society needed to be reconstructed in order to provide equal rights for all U.S. citizens. The need for such a clause came from pre-war so-called “Black laws” severely limiting legal rights for African Americans, most notably the rights to own property and business. The federal government thus needed to ensure that African Americans, as well as other minorities, benefited from the same rights as everyone else.

The amendment was initially proposed in 1866, and it became a law in 1868. Initially a state law, it has since become applicable at the state, local, and federal level. Although it was conceived as a law that protects the idea that all people are fundamentally equal and they should have identical rights, liberties, and possibilities, it has proven difficult to correctly apply in cases that do not involve race, such as assigning someone to perform a certain action or determining the recipient of a government benefit.

How Equal Protection is Upheld by the Court

In order to properly classify and apply the equal protection clause, courts have devised a method of analysis that categorizes potential classifications:

  • Classifications based on race are categorized as “strict”
  • Classifications based on sex are called “intermediate”
  • For any other kind of classifications, “rational basis”

While some Court members have opposed these categories and many consider them detrimental to the justice system, they are generally used in courts.

Strict Scrutiny

Strict scrutiny is generally used on classifications based on race, national identity, or citizenship status, although these categories are increasingly controversial. Classifications based on race are so severely scrutinized that even things designed to help racial minorities, such as Affirmative Action programs, are influenced by the equal protection clause.

Strict scrutiny is applied when a government action is analyzed and, if the approach is successful but “suspect” of breaking equal protection boundaries, a less problematic but similarly effective approach is devised.

Intermediate Scrutiny

The intermediate scrutiny was generally used by the Supreme Court in cases of classifications based on gender, but also in some cases involving aliens and extramarital statuses of children. It was initially adopted in 1976, abolishing a statute allowing women over 18 to purchase beer, but only allowing men over 21 to do the same thing. Other popular uses were eliminating gender segregation in nursing schools and single-sex state universities, but also cases where families of working women received fewer benefits than the male counterparts and cases where smaller benefits were granted to widowers than to widows.

Exceptions have been made, though. Laws that made draft registration mandatory only for men were upheld in 1981, while statutory rape laws only punish men for engaging in sexual activities with underage members of the opposite gender.

Rationality Review

This applies to classifications that do not fall under the previous two categories and are only scrutinized based on a “rationality” review by the court of law. In the past, courts have upheld classifications, even with the unclear basis and a less than obvious outcome, as long as it was considered rational and accomplished a clear interest by the government.

The rational basis scrutiny is applied in most legislative endeavors regarding regulations in the economy, benefits of welfare, use of property, business, or acts done by individuals. Even if the consequences of a classification would have a negative impact on a particular race, they are subjected to a rationality review instead of a strict scrutiny, as long as the actual terms of the classification have nothing to do with race.

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