Equal Protection Standards of Review
1. Minimum Scrutiny
In equal protection analysis this standard requires the challenger to
prove that the use of the
classification is not rationally related to a legitimate governmental
By contrast, this same standard in due process analysis requires the
challenger to prove that the means are not rationally related to a
legitimate governmental interest.
Equal Protection Minimum Scrutiny: Is the use of the classification
rationally related to a legitimate governmental interest?
Due Process Minimum Scrutiny: Are the means rationally related
to a legitimate governmental interest?
Is the use of the
classification substantially related to the accomplishment of an
important governmental interest?
This test requires that the government prove that the use of
the classification is substantially related to the accomplishment of an
important governmental objective so that it is neither substantially
overinclusive nor substantially underinclusive, but it does not require
that the use of the classification be absolutely necessary to the
accomplishment of the objective.
Is the use of the
classification narrowly tailored to accomplish a compelling
Narrowly tailored under this test means the government must prove that
it cannot achieve its compelling objective without the use of the
classification. In other words, that there is no less discriminatory
classification that the government can employ in order to achieve its
compelling objective. Alternative classifications can be ones that
don't employ the suspect trait at all as well as classifications that
employ the trait, but to a lesser extent. Sometimes the
phrase narrowly tailored is used and sometimes the word necessary is
used, but in the
context of strict scrutiny narrowly tailored means necessary.
4. What Standard Applies?
To decide what standard applies, a court will analyze the basis for the
discrimination to decide if discrimination against the members of the
class should be treated as a suspect classification, a quasi-suspect
classification or a nonsuspect classification. This analysis evaluates
whether the classification has a sufficient number of the traits
associated with a suspect classification. A list of 5 questions to ask,
questions that focus on 5 characteristics of a suspect class, can be
derived from past cases:
(1) has the group singled out suffered from a history of discrimination;
(2) does the trait generally bear no relationship to a person's ability
to contribute to society;
(3) is the trait often singled out to reinforce prejudice against the
group or label the group as inferior;
(4) is the group politically powerless by its numbers in the
population, by under-representation in government, or by its inability
to influence the legislative agenda; and
(5) is the trait shared by the group a distinct trait and one over
which its members have no
control, an immutable or unalterable characteristic, or a trait that is
central to personal identity.
Groups that share some, but not all, of these characteristics may be
quasi-suspect (like gender) and discrimination against them may merit
intermediate scrutiny review. Realistically, quasi-suspect status
is the most a challenger can hope to achieve out of this analysis since
the Court has shown itself to be unwilling to add to the category of
fully suspect classes.