Fourteenth Amendment, Section 1 — Equal Protection: Non-Race Based Classifications

Amdt14.S1.8.7.1 Overview of Non-Race Based Classifications

Toward the end of the Warren Court, there emerged a trend to treat classifications on the basis of nationality or alienage as suspect,¹ to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review,² and to decide cases concerning statutory and administrative treatments of children born out of wedlock inconsistently.³ Language in a number of opinions appeared to suggest that poverty was a suspect condition, so that treating the poor adversely might call for heightened equal protection review.⁴

However, in a major evaluation of equal protection analysis early in this period, the Court reaffirmed a two-tier approach, determining that where the interests involved that did not occasion strict scrutiny, the Court would decide the case on minimum rationality standards. Justice Lewis Powell, writing for the Court in San Antonio School Dist. v. Rodriguez,⁵ decisively rejected the contention that a de facto wealth classification, with an adverse impact on the poor, was either a suspect classification or merited some scrutiny other than the traditional basis,⁶ a holding that has several times been strongly reaffirmed by the Court.⁷ But the Court’s rejection of some form of intermediate scrutiny did not long survive.

Without extended consideration of the issue of standards, the Court more recently adopted an intermediate level of scrutiny, perhaps one encompassing several degrees of intermediate scrutiny. Thus, gender classifications must, in order to withstand constitutional challenge, “serve important governmental objectives and must be substantially related to achievement of those objectives.”⁸ And classifications that disadvantage persons born out of wedlock are subject to a similar though less exacting scrutiny of purpose and fit.⁹ This period also saw a withdrawal of the Court from the principle that alienage is always a suspect classification, so that some discriminations against aliens based on the nature of the political order, rather than economics or social interests, need pass only the lenient review standard.¹⁰

The Court has so far resisted further expansion of classifications that must be justified by a standard more stringent than rational basis. For example, the Court has held that age classifications are neither suspect nor entitled to intermediate scrutiny.¹¹ Although the Court resists the creation of new suspect or “quasi-suspect” classifications, it may still, on occasion, apply the Royster Guano rather than the Lindsley standard of rationality.¹²

Amdt14.S1.8.7.2 Alienage Classification

An alien, whether present lawfully, unlawfully, temporarily, or permanently, is a “person” within the meaning of the Equal Protection Clause and receives its protection.¹ One of the earliest equal protection decisions, Yick Wo v. Hopkins,² involved the constitutionality of a municipal ordinance that granted officials absolute and unrestrained authority to grant licenses for laundries.³ The Supreme Court found the officials were employing their authority to deny permission to resident Chinese aliens.⁴ The Court struck down the facially neutral city ordinance as an equal protection violation, stating that the distinction was based on “no reason . . . except hostility to the race and nationality. . . . ”⁵

In many subsequent cases after Yick Wo until 1948, the Court allowed less favorable treatment of aliens whenever the alienage classification related to a “special public interest.”⁶ In particular, the Court upheld state laws forbidding aliens from taking possession of natural resources, citing a state’s significant legitimate interest in reserving use of these resources for its citizens.⁷ The Court also sustained laws prohibiting the ownership of land by aliens and the indirect control of lands by aliens.⁸ By contrast, in Truax v. Reich,⁹ the Court struck down an Arizona law that required employers with more than five employees to hire at least 80% qualified voters or native-born citizens.¹⁰ According to the Court, “No special public interest with respect to any particular business is shown that could possibly be deemed to support the enactment.”¹¹

The Court eroded the “special interest” doctrine in the 1948 decision Takahashi v. Fish & Game Commission,¹² which involved a challenge brought by a Japanese alien (then ineligible for U.S. citizenship under federal law) to a state statute barring issuance of commercial fishing licenses to persons “ineligible to citizenship.”¹³ The Court struck down the California law under the Fourteenth Amendment, holding that “‘ownership’ [of fish] is inadequate to justify California in excluding any or all aliens who are lawful residents of the state from making a living by fishing in the ocean off its shore while permitting all others to do so.”¹⁴ Writing for the Court, Justice Hugo Black reasoned that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.”¹⁵

The Court began applying a more explicitly rigorous standard of review to alienage classification statutes in the 1970s. In the 1971 decision Graham v. Richardson,¹⁶ the Supreme Court struck down state statutes that either wholly disqualified resident aliens for welfare assistance or imposed a lengthy durational residency requirement on eligibility.¹⁷ The Court announced that it would apply strict scrutiny to alienage classifications, reasoning that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close scrutiny.”¹⁸

Other decisions applying strict scrutiny soon followed. In the 1973 decision Sugarman v. Dougall,¹⁹ the Court voided a state law making citizenship a requirement for any position in the competitive class of a state civil service system.²⁰ According to the Court, a state’s power “to preserve the basic conception of a political community” enables it to prescribe the qualifications of its officers and voters,²¹ and this power would extend “to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.”²² However, a flat ban on alien employees for much of the state’s career public service, including both policy-making and nonpolicy-making jobs, ran afoul of the requirement that, in achieving a valid interest through the use of a suspect classification, the state must employ means that are precisely drawn in light of the valid purpose.²³ In In re Griffiths,²⁴ the Court struck down a state law that excluded aliens from being licensed as attorneys.²⁵ The Court reaffirmed that strict scrutiny was the proper test for distinctions based on alienage and reasoned that it was impermissible under the Fourteenth Amendment for states to require citizenship as a condition of practicing law.²⁶ Likewise, the Court in Examining Board v. Flores de Otero²⁷ invalidated a Puerto Rico statute that barred licensing aliens to practice engineering.²⁸ Additionally, in Nyquist v. Mauclet,²⁹ the Supreme Court applied strict scrutiny to invalidate a New York law that restricted the receipt of scholarships and similar financial support to U.S. citizens, those who had applied for citizenship, and those who declared an intent to apply for citizenship as soon as they became eligible.³⁰

In the following Term, however, the Supreme Court held that not every exclusion of aliens was subject to strict scrutiny, “because to do so would ‘obliterate all the distinctions between citizens and aliens, and thus deprecate the historic values of citizenship.’”³¹ Accordingly, the Court has carved out an exception and applies rational basis review to alienage classifications related to self-government and the democratic process. In Foley v. Connelie,³² the Court upheld a state law that excluded aliens from appointment as members of the state police force.³³ The Court reasoned that the police function discharged “a most fundamental obligation of government to its constituency” and necessarily cloaked the police with substantial discretionary powers.³⁴ Continuing to enlarge the exception, the Court in Ambach v. Norwick³⁵ sustained a state law barring resident aliens who had not manifested an intention to apply for citizenship from employment as public school teachers.³⁶ The Court applied Foley, declaring that rational basis review was appropriate.³⁷ Teachers, the Court observed, perform a task that “go[es] to the heart of representative government” because of the role of public education in cultivating civic values, as well as the responsibility and discretion they have in fulfilling that role.³⁸

Then, in Cabelle v. Chavez-Salido,³⁹ the Supreme Court sustained a state law imposing a citizenship requirement upon all positions designated as “peace officers” as it applied to employment as a probation officer.⁴⁰ Applying rational basis review, the Court reasoned that probation officers both serve as law enforcement and perform an educational function for those they supervise.⁴¹ In Bernal v. Fainter,⁴² however, the Supreme Court invalidated a Texas law that required U.S. citizenship to become a notary public.⁴³ The Court declined to apply the exception and instead reviewed the law under strict scrutiny. The Court distinguished notaries from employees who “are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals.”⁴⁴

Thus, the Court has so far made three distinctions when analyzing equal protection challenges based on alienage. First, it has disapproved of the earlier line of cases that allowed aliens to be treated in a less favorable manner whenever the classification is based on a “special public interest,” and now would foreclose attempts by the states to retain certain economic benefits, primarily employment and opportunities for livelihood, exclusively for citizens. Second, subject to a limited exception, classifications with an adverse impact on aliens will generally be subject to strict scrutiny and usually fail. Third, some alienage classifications related to self-government and the democratic process need only satisfy rational basis review, but typically only when those classifications relate to positions that involve policy-making responsibility or the exercise of authority over others.

The Supreme Court has addressed one instance involving the application of the Equal Protection Clause in the more specific context of unlawfully present aliens. In Plyler v. Doe,⁴⁵ the Court considered a Texas education law that withheld from local school districts any state funds for the education of children not “legally admitted” to the country and authorized local school districts to deny enrollment to these children.⁴⁶ The Court did not explicitly articulate a level of scrutiny but rejected the application of strict scrutiny, stating that “[u]ndocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy. Nor is education a fundamental right.”⁴⁷ Instead, the Court appeared to apply intermediate scrutiny in evaluating discrimination against unlawfully present alien children in regard to education.⁴⁸ The Court held the Texas law unconstitutional under the Equal Protection Clause, rejecting Texas’s purported interests in preserving limited resources for its lawful residents, deterring an influx of unlawfully present aliens, avoiding the special burden imposed by these children, and serving children who were more likely to remain in the state and contribute to its welfare.⁴⁹ The total denial of an education, according to the Court, would stamp the children with an “enduring disability” that would permanently harm both them and the state.⁵⁰

Amdt14.S1.8.7.3 Out of Wedlock Births

After wrestling in a number of cases with the question of the permissibility of governmental classifications disadvantaging persons born out of wedlock and the standard for determining which classifications are sustainable, the Court arrived at a standard difficult to state and even more difficult to apply.¹ Although the Court has determined that a person’s status as having been born out of wedlock “is analogous in many respects to the personal characteristics that have been held to be suspect when used as the basis of statutory differentiations,” the analogy is “not sufficient to require ‘our most exacting scrutiny.’” The scrutiny to which it is entitled is intermediate, “not a toothless [scrutiny],” but somewhere between that accorded race and that accorded ordinary economic classifications. Basically, the standard requires a determination of a legitimate legislative aim and a careful review of how well the classification serves, or “fits,” the aim.² The common rationale of all the cases involving state action that distinguishes among people based on whether they were born out of wedlock is not clear, is in many respects not wholly consistent,³ but the theme that seems to be imposed on them by the more recent cases is that so long as the challenged statute does not so structure its conferral of rights, benefits, or detriments so that some children born out of wedlock who would otherwise qualify in terms of the statute’s legitimate purposes are disabled from participation, the imposition of greater burdens upon children born out of wedlock or some classes of children born out of wedlock (for example, those not acknowledged by their fathers) than upon children born to married parents is permissible.⁴

The issue of intestate succession rights for children born out of wedlock has divided the Court over the entire period. At first adverting to the broad power of the states over descent of real property, the Court employed relaxed scrutiny to sustain a law denying children born out of wedlock the right to share equally with children born to married parents in the estate of their common father, who had acknowledged the children born out of wedlock (but not “legitimated” them) and who had died intestate.⁵ Labine was strongly disapproved, however, and virtually overruled in Trimble v. Gordon,⁶ which found an equal protection violation in a statute allowing children born out of wedlock to inherit by intestate succession from their mothers but from their fathers only if the father had “acknowledged” the child and the child had been “legitimated” by the marriage of the parents. The father in Trimble had not acknowledged his child, and had not married the mother, but a court had determined that he was in fact the father and had ordered that he pay child support. Carefully assessing the purposes asserted to be the basis of the statutory scheme, the Court found all but one to be impermissible or inapplicable and that one not served closely enough by the restriction. First, it was impermissible to attempt to influence the conduct of adults not to engage in illicit sexual activities by visiting the consequences upon the offspring.⁷ Second, the assertion that the statute mirrored the assumed intent of decedents, in that, knowing of the statute’s operation, they wold have acted to counteract it through a will or otherwise, was rejected as unproved and unlikely.⁸ Third, the argument that the law presented no insurmountable barrier to children born out of wedlock inheriting since a decedent could have left a will, married the mother, or taken steps to “legitimate” the child, was rejected as inapposite.⁹ Fourth, the statute did address a substantial problem, a permissible state interest, presented by the difficulties of proving paternity and avoiding spurious claims. However, the court thought the means adopted, total exclusion, did not approach the “fit” necessary between means and ends to survive the scrutiny appropriate to this classification. The state court was criticized for failing “to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity. For at least some significant categories of children born out of wedlock to intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws.”¹⁰ Because the state law did not follow a reasonable middle ground, it was invalidated.

A reasonable middle ground was discerned, at least by Justice Lewis Powell, in Lalli v. Lalli,¹¹ concerning a statute that permitted children born to married parents to inherit automatically from both their parents, while children born out of wedlock generally could inherit automatically only from their mothers, and could inherit from their intestate fathers only if a court of competent jurisdiction had, during the father’s lifetime, entered an order declaring paternity. The child tendered evidence of paternity, including a notarized document in which the putative father, in consenting to his marriage, referred to him as “my son” and several affidavits by persons who stated that the elder Lalli had openly and frequently acknowledged that the younger Lalli was his child. In the prevailing view, the single requirement of entry of a court order during the father’s lifetime declaring the child as his met the “middle ground” requirement of Trimble; it was addressed closely and precisely to the substantial state interest of seeing to the orderly disposition of property at death by establishing proof of paternity of children born out of wedlock and avoiding spurious claims against intestate estates. To be sure, some children born out of wedlock who were unquestionably established as children of the deceased would be disqualified because of failure of compliance, but individual fairness is not the test. The test rather is whether the requirement is closely enough related to the interests served to meet the standard of rationality imposed. Also, although the state’s interest could no doubt have been served by permitting other kinds of proof, that too is not the test of the statute’s validity. Hence, the balancing necessitated by the Court’s promulgation of standards in such cases caused it to come to different results on closely related fact patterns, making predictability quite difficult but perhaps manageable.¹²

The Court’s difficulty in arriving at predictable results has extended outside the area of descent of property. Thus, a Texas child support law affording children born to married parents a right to judicial action to obtain support from their fathers while not affording the right to children born out of wedlock denied the latter equal protection. “[A] State may not invidiously discriminate against [children born out of wedlock] by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother.”¹³

Similarly, the Court struck down a federal Social Security provision that made eligible for benefits, because of an insured parent’s disability, all children born to that parent while he or she was married as well as those children born out of wedlock to that parent who were capable of inheriting personal property from the wage-earning parent under state intestacy law; children who were deemed to be born out of wedlock only because of a nonobvious defect in their parents’ marriage; and children born out of wedlock who had been “legitimated” in accordance with state law, but that made other children born out of wedlock eligible only if they were born prior to the onset of disability and if they were dependent upon the parent, or lived with the parent, prior to the onset of disability. The Court deemed the purpose of the benefits to be to aid all children and rejected the argument that the burden on children born out of wedlock was necessary to avoid fraud.¹⁴

However, in a second case, an almost identical program, providing benefits to children of a deceased insured, was sustained because its purpose was found to be to give benefits to children who were dependent upon the deceased parent and the classifications served that purpose. Presumed dependent were all children born to the deceased and his or her spouse while he or she was married, as well as those children born out of wedlock who were able to inherit under state intestacy laws, who were deemed to be born out of wedlock only because of the technical invalidity of the parent’s marriage, who had been acknowledged in writing by the father, who had been declared to be the father’s by a court decision, or who had bwho held entitled to the father’s support by a court. Children born out of wedlock that were not covered by these presumptions had to establish that they were living with the insured parent or were being supported by him when the parent died. According to the Court, all the presumptions constituted an administrative convenience, which was a permissible device because those children born out of wedlock who were entitled to benefits because they were in fact dependent would receive benefits upon proof of the fact, and it was irrelevant that other children not dependent in fact also received benefits.¹⁵