Fair Treatment by the Government: Equal Protection

Authored By: Carl Vinson Institute
Read this in:
Spanish / Español


Fair Treatment by the Government: Equal Protection

This document tells you the following:

  • What is equal protection and what does it mean?
  • What is the rational basis test?
  • What is the strict scrutiny test? What are the elements of the strict scrutiny test?
  • What are the fundamental rights?
  • What does it mean to say that something is a "suspect classification"? What are the "suspect classifications"?
  • What is the intermediate scrutiny test? What are the elements of the intermediate scrutiny test?
  • What is statutory equal protection and to what classifications does it apply?
  • What happens when equal protection is denied?


The founders of our country had great concern for fairness in government and law. In fact, the writers of the Declaration of Independence expressed this concern explicitly when they wrote about equality:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. . . .

Both the U.S. and Georgia constitutions put limits on government in an effort to ensure that each person is treated fairly under the laws. They provide that the government-or anyone using the powers of government-cannot take away "life, liberty, or property" without "due process of law." Moreover, everyone must be given equal protection under the law.

Keep in mind, however, that these provisions are restrictions on government action, and they apply directly only to people acting on behalf of government. These provisions can, however, be extended to private activity by the passage of other laws.


Due process concerns the basic concept of fairness. The constitutional right to due process re-quires that the government act fairly when it deprives a person of life, liberty, or property.

The requirement of equal protection applies more generally to government actions. It is the requirement usually referred to when people talk about discrimination. It concerns another fundamental concept-equality.

You know that people are not equal in all ways. The basic intent of equal protection is to make sure that people are treated as equally as possible under our legal system. For example, it is to see that everyone who gets a speeding ticket will face the samEprocedures. A further intent is to ensure that all Americans are provided with equal opportunities in education, employment, and other areas.

The 1954 case Brown v. Topeka Board of Education was a landmark step in efforts to eliminate discrimination based on race in educational opportunity. This requirement for equal protection is found in both the state and federal constitutions.

The Georgia Constitution states

Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws. [Article 1, section 1, paragraph 2]

The U.S. Constitution makes a similar provision in the Fourteenth Amendment. It says that no state shall make or enforce any law that will "deny to any person within its jurisdiction the equal protection of the law."

These provisions require the government to treat persons equally and impartially. But is it really possible to do so? Can equal protection of the law be guaranteed to everyone in all government actions? Is it possible for laws not to discriminate against some person or group?

For example, a law is passed that gives some benefits to farmers. This law, therefore, classifies people as farmers and nonfarmers. Because farmers get benefits and nonfarmers don't, doesn't this law "discriminate"? Of course it does.

Actually, such classifications are used in almost all legislative acts. Many economic and social laws unavoidably affect different groups of people in different ways. It is not just any kind of discrimination that is prohibited by the constitutional guaranties of equal protection. Rather, it is classifications that

• have no rational basis,
• improperly classify people on a basis that is considered to be "suspect" by the courts (such as race), or
• deny fundamental rights without a compelling reason.

Such classifications violate the equal protection clauses of the Georgia and United States constitutions.

Rational Basis Test

Courts have generally ruled that most classifications imposed by the government do not deny persons equal protection of the laws. Generally, a legislature may make distinctions among people for any proper purpose, as long as the distinction is rational. There must be a logical relationship between the purpose of a law and any classification of people that it makes. Without this "rational basis," a law will be struck down when challenged in court.

Consider, for instance, the following law: In Georgia, children must be at least six years old on September 1 to attend first grade in public schools. It could be argued that this law discriminates unfairly against persons who are younger than six.

To decide whether it violates the equal protection clause, a court would consider its purpose. Then it would decide whether there is a reasonable relationship between the purpose and the classification.

To succeed in school, children must be mature enough to stay in the classroom for an entire day. They must be ready to begin the learning process. The General Assembly determined that six years old is an age at which most children can do these things. Many other states and nations also have selected age six.

This consistency suggests that the selection was sensible. Courts could be expected to find a rational basis for the classification. A similar analysis has been employed to uphold other laws treating minors (and certain types of minors) differently than other persons (for example, laws pertaining to obtaining drivers licenses, purchasing alcohol or cigarettes, and the right to be tried in juvenile court).

Strict Scrutiny Test

If a governmental action affects the "fundamental rights" of certain people or classifies them in a "suspect" way (thereby raising suspicions about why the government is taking such action), the action must pass a "strict scrutiny test."

This test provides a higher standard than does the rational basis test. If the action does not pass the test, it is considered unconstitutional.

To pass strict scrutiny, such an action must

(a) further a "compelling" (necessary) government interest and

(b) be written so that it affects the smallest group of people possible.

To survive strict scrutiny, then, a law will be questioned using both of these elements:

Compelling interest: Is the law necessary to further that governmental interest?

Narrowly tailored: Is it no broader than necessary to further that government interest?

It is very difficult to devise a law that will survive such strict scrutiny.

Fundamental Rights

Some rights are so fundamental that the government must have an extremely strong reason for limiting them. Courts look closely at laws that affect these rights. .

In a real-life case, the U.S. Supreme Court held that a Florida Supreme Court order for a recount of votes in the 2000 presidential election was an equal protection violation that improperly treated some voters and candidates differently from county to county.

Suspect Classifications

The Supreme Court has declared certain classifications of people to be "suspect." Therefore, courts require more of a justification before such classifications will be approved as part of a government action.

Race. The clearest example of suspect classification is race. This example goes back to the Fourteenth Amendment. A major goal of that amendment was to ensure that recently freed slaves had the full benefit of their freedom.

Sometimes laws may violate the equal protection clause even if their classifications appear to be neutral. This violation may result from the effect of the law, or it may result from how it is applied.

Yick Wo v. Hopkins, 118 U.S. 356 (1886).

The Court held that the ordinance caused purposeful discrimination because, as applied, 79 of 80 non-Chinese applicants had received licenses from City A. However, all 200 Chinese who applied had been denied licenses.


Ybarra v. Town of Los Altos Hills, 503 F.2d 250 (9th Cir., 1974).

The effect of the zoning requirement could also create racial discrimination. Fewer African Americans than white persons in could afford high-cost housing. However, the U.S. Court of Appeals said that the requirement did not violate the equal protection clause because there was no proof that it was intended to be discriminatory. 

Religion. The courts have treated with great suspicion any law that classifies people on the basis of their religion. They base this view on both the equal protection clause and the First Amendment prohibition against the establishment of religion.

National Origin. Another suspect classification is that of national origin. The figure below describes an action against a national group.

A Violation of Equal Protection?

During World War II, 120,000 Americans of Japanese ancestry were placed in confinement in this country. They were forced to give up property and careers. Some spent as many as three years in isolated detention camps.

The Japanese Amercans were put into these camps because it was assumed that all such persons would sympathize with Japan - the enemy of the united State in that war. Officials thought that they would act as spies or try to sabotage the Amercan war effort.

In a 1944 case, Korematsu v. United States (323 U.S. 214) the Supreme Court upheld the confinement. The ruling gave "great deference" to the combined war powers of the president and Congress.

Thirty yeasr later, a congressional committee could not find a single case of subversive activity by Japanese Americans.

In passing the Civil Liberties Act of 1988, the United States government (1) acknowledged the fundamental injustice of the confinement, (2) apologized for the action, (3) established a public education fund to see that such an injustice will not happen again, and (4) paid restitution of $20,000 to each Japanese American who had been confied (or, if a person had died, to that person's spouse, children, or parents).

Alienage. The courts also have treated differentiation of legal aliens as a suspect classification. An alien is a person residing in the United States who is not a citizen. Courts have struck down laws that limited the employment of legal aliens or denied them welfare benefits.


Intermediate Scrutiny Test

Because the law is constantly evolving, there are certain classifications that have not yet been declared suspect. (They are not yet subject to strict scrutiny.) These classifications have been given a "quasi-suspect" status, though, that puts the level of scrutiny somewhere between the stringent strict scrutiny and the lenient ra-tional relationship test. To survive judicial challenges at this intermediate level of scrutiny, two factors must exist.

A classification must serve an "important" governmental interest and be "substantially related" to serving that interest.

Gender. Classifications based on gender have reflected the traditional view of women in society. Recently, however, much of this gender-based legislation has been seen as inconsistent with the modern role of women. Intermediate scrutiny of gender-based classifications has become common.

The Supreme Court held that the preference for men as administrators of estates was based on an out-of-date view of women. 4, Reed v. Reed, 404 U.S. 71 (1971).

In the case of the Social Security benefits, the courts found that the law was not acceptable because it required persons of both genders to pay these taxes but denied benefits to one gender. Califano v. Goldfarb, 430 U.S. 199 (1976).


Statutory Equal Protection

Congress and various state legislatures have, over the past few decades, enacted numerous laws that protect the rights of people against dis-crim-ination. These laws are based not just on suspect classifications but on other classifications that have not yet been given protection by the courts.

Age. Courts have found, under various legislative enactments, discrimination when people over the age of 40 have been denied jobs because of age. The courts have generally hesitated, though, to find that youth-based classifications violate the equal protection clause. Age limits on driving, getting married, and entering contracts have been allowed to stand. Similarly, the establishment of lower DUI standards for minors and trying minors as adults have survived equal protection challenges in Georgia.

Age, however, does give some benefit of constitutional protections. One protection includes the right to procedural due process in school disciplinary proceedings. Also, in many circumstances, freedoms and protections granted by the Bill of Rights are considered.

Poverty. Courts have never indicated that pov-erty, as such, is a suspect classification. They have, however, looked closely at classifications related to poor people, particularly regarding due process rights. A basic question arises: Are poor people denied equal protection because they cannot afford the costs of attorneys and courts?

All people have the right to be represented by an attorney in most criminal cases. Because the poor generally cannot afford an attorney, the Constitution requires that the government provide one without charge. The U.S. Supreme Court, however, has recently held that court-appointed attorneys-even though they are generally compelled to represent the poor, even on appeal-can withdraw if the appeal is proven frivolous. Moreover, Congress has severely curtailed funds for free legal services to the poor.

In civil cases in Georgia, as in the federal courts, poor persons can apply to proceed in forma pauperis, which means they do not have to pay filing fees or other court costs. Further, they may also proceed pro se, meaning that they may represent themselves. Poor persons are also eligible for the services of legal service organizations such as Georgia Legal Services. However, the scope of such services is limited by the amount of government funding available, and access to such services is not constitutionally guaranteed.

The disabled. Several federal laws have extended equal protection opportunities to the disabled. The Americans with Disabilities Act of 1990 (discussed in chapter 7) protects disabled persons from discrimination in certain areas, including employment, public accommodations (res-taurants, theaters, etc.), and transportation. The 1975 Education for All Handicapped Children Act requires states to provide free and appropriate education to exceptional children.

When Equal Protection Is Denied

What happens when a government law or activity is found to violate the equal protection clause?

A law that violates equal protection is un-constitutional and void. Therefore it cannot be enforced. Sometimes a new law is required. Congress had to amend the Social Security Act so that widowers as well as widows would receive benefits.

A more difficult problem occurs when a law is being applied in a discriminatory way. Sometimes administrators of the law have tried to get around the court's decision. In such situations, the court must use its enforcement powers. The court might issue its own orders as to which schools the children should attend.

A final question concerns how far the courts or the government should go in terms of rectifying past discriminatory practices. Should the government merely eliminate past practices, or should it try to remedy past injustices by favoring the suspect group?

Affirmative actions that try to correct past injustices against one group often, at least temporarily, discriminate against others. In other words, a preference granted to one person may mean an opportunity denied to another. The issue of rectifying past discriminatory practices is probably the most difficult one facing the courts in the area of equal protection today.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Jul 30, 2004