The New Equal Protection

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Classifications Meriting Close Scrutiny

Alienage and Nationality.—“It has long been settled . . . that the term ‘person’ [in the Equal Protection Clause] encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside.”1854 Thus, one of the earliest equal protection decisions struck down the administration of a facially lawful licensing ordinance that was being applied to discriminate against Chinese.1855 In many subsequent cases, however, the Court recognized a permissible state interest in distinguishing between its citizens and aliens by restricting enjoyment of resources and public employment to its own citizens.1856 But, in Hirabayashi v. United States,1857 the Court announced that “[d]istinctions between citizens solely because of their ancestry” were “odious to a free people whose institutions are founded upon the doctrine of equality.” And, in Korematsu v. United States,1858 classifications based upon race and nationality were said to be suspect and subject to the “most rigid scrutiny.” These dicta resulted in a 1948 decision that appeared to call into question the rationale of the “particular interest” doctrine under which earlier discrimination had been justified. In the 1948 decision, the Court held void a statute barring issuance of commercial fishing licenses to persons “ineligible to citizenship,” which in effect meant resident alien Japanese.1859 “The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide ‘in any state’ on an equality of legal privileges with all citizens under nondiscriminatory laws.” Justice Black said for the Court that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.”1860

Announcing “that classifications based on alienage . . . are inherently suspect and subject to close scrutiny,” the Court struck down state statutes which either wholly disqualified resident aliens for welfare assistance or imposed a lengthy durational residency requirement on eligibility.1861 Thereafter, in a series of decisions, the Court adhered to its conclusion that alienage was a suspect classification and voided a variety of restrictions. More recently, however, it has created a major “political function” exception to strict scrutiny review, which shows some potential of displacing the previous analysis almost entirely.

In Sugarman v. Dougall,1862 the Court voided the total exclusion of aliens from a state’s competitive civil service. A state’s power “to preserve the basic conception of a political community” enables it to prescribe the qualifications of its officers and voters,1863 the Court held, and this power would extend “also 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.”1864 But a flat ban upon much of the state’s career public service, both of policy-making and non-policy-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.1865

State bars against the admission of aliens to the practice of law were also struck down, the Court holding that the state had not met the “heavy burden” of showing that its denial of admission to aliens was necessary to accomplish a constitutionally permissible and substantial interest. The state’s admitted interest in assuring the requisite qualifications of persons licensed to practice law could be adequately served by judging applicants on a case-by-case basis and in no sense could the fact that a lawyer is considered to be an officer of the court serve as a valid justification for a flat prohibition.1866 Nor could Puerto Rico offer a justification for excluding aliens from one of the “common occupations of the community,” hence its bar on licensing aliens as civil engineers was voided.1867

In Nyquist v. Mauclet,1868 the Court seemed to expand the doctrine. The statute that was challenged restricted the receipt of scholarships and similar financial support to citizens or to aliens who were applying for citizenship or who filed a statement affirming their intent to apply as soon as they became eligible. Therefore, because any alien could escape the limitation by a voluntary act, the disqualification was not aimed at aliens as a class, nor was it based on an immutable characteristic possessed by a “discrete and insular minority”—the classification that had been the basis for declaring alienage a suspect category in the first place. But the Court voided the statute. “The important points are that § 661(3) is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class.”1869 Two proffered justifications were held insufficient to meet the high burden imposed by the strict scrutiny doctrine.

In the following Term, however, the Court denied that 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.’”1870 Upholding a state restriction against aliens qualifying as state policemen, the Court reasoned that the permissible distinction between citizen and alien is that the former “is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized ‘a State’s historic power to exclude aliens from participation in its democratic political institutions,’ . . . as part of the sovereign’s obligation ‘to preserve the basic conception of a political community.’”1871 Discrimination by a state against aliens is not subject to strict scrutiny, but need meet only the rational basis test. It is therefore permissible to reserve to citizens offices having the “most important policy responsibilities,” a principle drawn from Sugarman, but the critical factor in this case is its analysis finding that “the police function is . . . one of the basic functions of government . . . . The execution of the broad powers vested in [police officers] affects members of the public significantly and often in the most sensitive areas of daily life. . . . Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals. The office of a policeman is in no sense one of ‘the common occupations of the community.’ . . .”1872

Continuing to enlarge the exception, the Court in Ambach v. Norwick1873 upheld a bar to qualifying as a public school teacher for resident aliens who have not manifested an intention to apply for citizenship. The “governmental function” test took on added significance, the Court saying that the “distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State.”1874 Thus, “governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.”1875 Teachers, the Court thought, because of the role of public education in inculcating civic values and in preparing children for participation in society as citizens and because of the responsibility and discretion they have in fulfilling that role, perform a task that “go[es] to the heart of representative government.”1876 The citizenship requirement need only bear a rational relationship to the state interest, and the Court concluded it clearly did so.

Then, in Cabell v. Chavez-Salido,1877 the Court, by a 5-to-4 vote, sustained a state law imposing a citizenship requirement upon all positions designated as “peace officers,” upholding in context that eligibility prerequisite for probation officers. First, the Court held that the extension of the requirement to an enormous range of people who were variously classified as “peace officers” did not reach so far nor was it so broad and haphazard as to belie the claim that the state was attempting to ensure that an important function of government be in the hands of those having a bond of citizenship. “[T]he classifications used need not be precise; there need only be a substantial fit.”1878 As to the particular positions, the Court held that “they, like the state troopers involved in Foley, sufficiently partake of the sovereign’s power to exercise coercive force over the individual that they may be limited to citizens.”1879

Thus, the Court so far has drawn a tripartite differentiation with respect to governmental restrictions on aliens. First, it has disapproved the earlier line of cases and now would foreclose attempts by the states to retain certain economic benefits, primarily employment and opportunities for livelihood, exclusively for citizens. Second, when government exercises principally its spending functions, such as those with respect to public employment generally and to eligibility for public benefits, its classifications with an adverse impact on aliens will be strictly scrutinized and usually fail. Third, when government acts in its sovereign capacity—when it acts within its constitutional prerogatives and responsibilities to establish and operate its own government—its decisions with respect to the citizenship qualifications of an appropriately designated class of public office holders will be subject only to traditional rational basis scrutiny.1880 However, the “political function” standard is elastic, and so long as disqualifications are attached to specific occupations1881 rather than to the civil service in general, as in Sugarman, the concept seems capable of encompassing the exclusion.

When confronted with a state statute that authorized local school boards to exclude from public schools alien children who were not legally admitted to the United States, the Court determined that an intermediate level of scrutiny was appropriate and found that the proffered justifications did not sustain the classification.1882 Because it was clear that the undocumented status of the children was relevant to valid government goals, and because the Court had previously held that access to education was not a “fundamental interest” that triggered strict scrutiny of governmental distinctions relating to education,1883 the Court’s decision to accord intermediate review was based upon an amalgam of at least three factors. First, alien-age was a characteristic that provokes special judicial protection when used as a basis for discrimination. Second, the children were innocent parties who were having a particular onus imposed on them because of the misconduct of their parents. Third, the total denial of an education to these children would stamp them with an “enduring disability” that would harm both them and the state all their lives.1884 The Court evaluated each of the state’s attempted justifications and found none of them satisfying the level of review demanded.1885 It seems evident that Plyler v. Doe is a unique case and that, whatever it may stand for doctrinally, a sufficiently similar factual situation calling for application of its standards is unlikely to arise.

Sex.—Shortly after ratification of the Fourteenth Amendment, the refusal of Illinois to license a woman to practice law was challenged before the Supreme Court, and the Court rejected the challenge in tones that prevailed well into the twentieth century. “The civil law, as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”1886 On the same premise, a statute restricting the franchise to men was sustained.1887

The greater number of cases have involved legislation aimed to protect women from oppressive working conditions, as by prescribing maximum hours1888 or minimum wages1889 or by restricting some of the things women could be required to do.1890 A 1961 decision upheld a state law that required jury service of men but that gave women the option of serving or not. “We cannot say that it is constitutionally impermissible for a State acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.”1891 Another type of protective legislation for women that was sustained by the Court is that premised on protection of morals, as by forbidding the sale of liquor to women.1892 In a highly controversial ruling, the Court sustained a state law that forbade the licensing of any female bartender, except for the wives or daughters of male owners. The Court purported to view the law as one for the protection of the health and morals of women generally, with the exception being justified by the consideration that such women would be under the eyes of a protective male.1893

A wide variety of sex discrimination by governmental and private parties, including sex discrimination in employment and even the protective labor legislation previously sustained, is now proscribed by federal law. In addition, federal law requires equal pay for equal work.1894 Some states have followed suit.1895 While the proposed Equal Rights Amendment was before the states and ultimately failed to be ratified,1896 the Supreme Court undertook a major evaluation of sex classification doctrine, first applying a “heightened” traditional standard of review (with bite) to void a discrimination and then, after coming within a vote of making sex a suspect classification, settling upon an intermediate standard. These standards continue, with some uncertainties of application and some tendencies among the Justices both to lessen and to increase the burden of governmental justification of sex classifications.

In Reed v. Reed,1897 the Court held invalid a state probate law that gave males preference over females when both were equally entitled to administer an estate. Because the statute “provides that different treatment be accorded to the applicants on the basis of their sex,” Chief Justice Burger wrote, “it thus establishes a classification subject to scrutiny under the Equal Protection Clause.” The Court proceeded to hold that under traditional equal protection standards—requiring a classification to be reasonable and not arbitrarily related to a lawful objective—the classification made was an arbitrary way to achieve the objective the state advanced in defense of the law, that is, to reduce the area of controversy between otherwise equally qualified applicants for administration. Thus, the Court used traditional analysis but the holding seems to go somewhat further to say that not all lawful interests of a state may be advanced by a classification based solely on sex.1898

It is now established that sex classifications, in order to withstand equal protection scrutiny, “must serve important governmental objectives and must be substantially related to achievement of those objectives.”1899 Thus, after several years in which sex distinctions were more often voided than sustained without a clear statement of the standard of review,1900 a majority of the Court has arrived at the intermediate standard that many had thought it was applying in any event.1901 The Court first examines the statutory or administrative scheme to determine if the purpose or objective is permissible and, if it is, whether it is important. Then, having ascertained the actual motivation of the classification, the Court engages in a balancing test to determine how well the classification serves the end and whether a less discriminatory one would serve that end without substantial loss to the government.1902

Some sex distinctions were seen to be based solely upon “old notions,” no longer valid if ever they were, about the respective roles of the sexes in society, and those distinctions failed to survive even traditional scrutiny. Thus, a state law defining the age of majority as 18 for females and 21 for males, entitling the male child to support by his divorced father for three years longer than the female child, was deemed merely irrational, grounded as it was in the assumption of the male as the breadwinner, needing longer to prepare, and the female as suited for wife and mother.1903 Similarly, a state jury system that in effect excluded almost all women was deemed to be based upon an overbroad generalization about the role of women as a class in society, and the administrative convenience served could not justify it.1904

Even when the negative “stereotype” that is evoked is that of a stereotypical male, the Court has evaluated this as potential gender discrimination. In J. E. B. v. Alabama ex rel. T. B.,1905 the Court addressed a paternity suit where men had been intentionally excluded from a jury through peremptory strikes. The Court rejected as unfounded the argument that men, as a class, would be more sympathetic to the defendant, the putative father. The Court also determined that gender-based exclusion of jurors would undermine the litigants’ interest by tainting the proceedings, and in addition would harm the wrongfully excluded juror.

Assumptions about the relative positions of the sexes, however, are not without some basis in fact, and sex may sometimes be a reliable proxy for the characteristic, such as need, with which it is the legislature’s actual intention to deal. But heightened scrutiny requires evidence of the existence of the distinguishing fact and its close correspondence with the condition for which sex stands as proxy. Thus, in the case that first expressly announced the intermediate scrutiny standard, the Court struck down a state statute that prohibited the sale of “non-intoxicating” 3. 2 beer to males under 21 and to females under 18.1906 Accepting the argument that traffic safety was an important governmental objective, the Court emphasized that sex is an often inaccurate proxy for other, more germane classifications. Taking the statistics offered by the state as of value, while cautioning that statistical analysis is a “dubious” business that is in tension with the “normative philosophy that underlies the Equal Protection Clause,” the Court thought the correlation between males and females arrested for drunk driving showed an unduly tenuous fit to allow the use of sex as a distinction.1907

Invalidating an Alabama law imposing alimony obligations upon males but not upon females, the Court in Orr v. Orr acknowledged that assisting needy spouses was a legitimate and important governmental objective. Ordinarily, therefore, the Court would have considered whether sex was a sufficiently accurate proxy for dependency, and, if it found that it was, then it would have concluded that the classification based on sex had “a fair and substantial relation to the object of the legislation.”1908 However, the Court observed that the state already conducted individualized hearings with respect to the need of the wife, so that with little if any additional burden needy males could be identified and helped. The use of the sex standard as a proxy, therefore, was not justified because it needlessly burdened needy men and advantaged financially secure women whose husbands were in need.1909

Various forms of discrimination between unwed mothers and unwed fathers received different treatments based on the Court’s perception of the justifications and presumptions underlying each. A New York law permitted the unwed mother but not the unwed father of an illegitimate child to block his adoption by withholding consent. Acting in the instance of one who acknowledged his parenthood and who had maintained a close relationship with his child over the years, the Court could discern no substantial relationship between the classification and some important state interest. Promotion of adoption of illegitimates and their consequent legitimation was important, but the assumption that all unwed fathers either stood in a different relationship to their children than did the unwed mother or that the difficulty of finding the fathers would unreasonably burden the adoption process was overbroad, as the facts of the case revealed. No barrier existed to the state dispensing with consent when the father or his location is unknown, but disqualification of all unwed fathers may not be used as a shorthand for that step.1910

On the other hand, the Court sustained a Georgia statute that permitted the mother of an illegitimate child to sue for the wrongful death of the child but that allowed the father to sue only if he had legitimated the child and there is no mother.1911 Similarly, the Court let stand, under the Fifth Amendment, a federal statute that required that, in order for an illegitimate child born overseas to gain citizenship, a citizen father, unlike a citizen mother, must acknowledge or legitimate the child before the child’s 18th birthday.1912 The Court emphasized the ready availability of proof of a child’s maternity as opposed to paternity, but the dissent questioned whether such a distinction was truly justified under strict scrutiny considering the ability of modern techniques of DNA paternity testing to settle concerns about legitimacy.

As in the instance of illegitimacy classifications, the issue of sex qualifications for the receipt of governmental financial benefits has divided the Court and occasioned close distinctions. A statutory scheme under which a serviceman could claim his spouse as a “dependent” for allowances while a servicewoman’s spouse was not considered a “dependent” unless he was shown in fact to be dependent upon her for more than one half of his support was held an invalid dissimilar treatment of similarly situated men and women, not justified by the administrative convenience rationale.1913 In Weinberger v. Wiesenfeld,1914 the Court struck down a Social Security provision that gave survivor’s benefits based on the insured’s earnings to the widow and minor children but gave such benefits only to the children and not to the widower of a deceased woman worker. Focusing not only upon the discrimination against the widower but primarily upon the discrimination visited upon the woman worker whose earnings did not provide the same support for her family that a male worker’s did, the Court saw the basis for the distinction resting upon the generalization that a woman would stay home and take care of the children while a man would not. Because the Court perceived the purpose of the provision to be to enable the surviving parent to choose to remain at home to care for minor children, the sex classification ill-fitted the end and was invidiously discriminatory.

But, when, in Califano v. Goldfarb,1915 the Court was confronted with a Social Security provision structured much as the benefit sections struck down in Frontiero and Wiesenfeld, even in the light of an express heightened scrutiny, no majority of the Court could be obtained for the reason for striking down the statute. The section provided that a widow was entitled to receive survivors’ benefits based on the earnings of her deceased husband, regardless of dependency, but payments were to go to the widower of a deceased wife only upon proof that he had been receiving at least half of his support from her. The plurality opinion treated the discrimination as consisting of disparate treatment of women wage-earners whose tax payments did not earn the same family protection as male wage earners’ taxes. Looking to the purpose of the benefits provision, the plurality perceived it to be protection of the familial unit rather than of the individual widow or widower and to be keyed to dependency rather than need. The sex classification was thus found to be based on an assumption of female dependency that ill-served the purpose of the statute and was an ill-chosen proxy for the underlying qualification. Administrative convenience could not justify use of such a questionable proxy.1916 Justice Stevens, concurring, accepted most of the analysis of the dissent but nonetheless came to the conclusion of invalidity. His argument was essentially that while either administrative convenience or a desire to remedy discrimination against female spouses could justify use of a sex classification, neither purpose was served by the sex classification actually used in this statute.1917

Again, the Court divided closely when it sustained two instances of classifications claimed to constitute sex discrimination. In Rostker v. Goldberg,1918 rejecting presidential recommendations, Congress provided for registration only of males for a possible future military draft, excluding women altogether. The Court discussed but did not explicitly choose among proffered equal protection standards, but it apparently applied the intermediate test of Craig v. Boren. However, it did so in the context of its often-stated preference for extreme deference to military decisions and to congressional resolution of military decisions. Evaluating the congressional determination, the Court found that it has not been “unthinking” or “reflexively” based upon traditional notions of the differences between men and women; rather, Congress had extensively deliberated over its decision. It had found, the Court asserted, that the purpose of registration was the creation of a pool from which to draw combat troops when needed, an important and indeed compelling governmental interest, and the exclusion of women was not only “sufficiently but closely” related to that purpose because they were ill-suited for combat, could be excluded from combat, and registering them would be too burdensome to the military system.1919

In Michael M. v. Superior Court,1920 the Court expressly adopted the Craig v. Boren intermediate standard, but its application of the test appeared to represent a departure in several respects from prior cases in which it had struck down sex classifications. Michael M. involved the constitutionality of a statute that punished males, but not females, for having sexual intercourse with a nonspousal person under 18 years of age. The plurality and the concurrence generally agreed, but with some difference of emphasis, that, although the law was founded on a clear sex distinction, it was justified because it served an important governmental interest— the prevention of teenage pregnancies. Inasmuch as women may become pregnant and men may not, women would be better deterred by that biological fact, and men needed the additional legal deterrence of a criminal penalty. Thus, the law recognized that, for purposes of this classification, men and women were not similarly situated, and the statute did not deny equal protection.1921

Cases of “benign” discrimination, that is, statutory classifications that benefit women and disadvantage men in order to overcome the effects of past societal discrimination against women, have presented the Court with some difficulty. Although the first two cases were reviewed under apparently traditional rational basis scrutiny, the more recent cases appear to subject these classifications to the same intermediate standard as any other sex classification. Kahn v. Shevin1922 upheld a state property tax exemption allowing widows but not widowers a $500 exemption. In justification, the state had presented extensive statistical data showing the substantial economic and employment disabilities of women in relation to men. The provision, the Court found, was “reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden.”1923 And, in Schlesinger v. Ballard,1924 the Court sustained a provision requiring the mandatory discharge from the Navy of a male officer who has twice failed of promotion to certain levels, which in Ballard’s case meant discharge after nine years of service, whereas women officers were entitled to 13 years of service before mandatory discharge for want of promotion. The difference was held to be a rational recognition of the fact that male and female officers were dissimilarly situated and that women had far fewer promotional opportunities than men had.

Although in each of these cases the Court accepted the proffered justification of remedial purpose without searching inquiry, later cases caution that “the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.”1925 Rather, after specifically citing the heightened scrutiny that all sex classifications are subjected to, the Court looks to the statute and to its legislative history to ascertain that the scheme does not actually penalize women, that it was actually enacted to compensate for past discrimination, and that it does not reflect merely “archaic and overbroad generalizations” about women in its moving force. But where a statute is “deliberately enacted to compensate for particular economic disabilities suffered by women,” it serves an important governmental objective and will be sustained if it is substantially related to achievement of that objective.1926

Many of these lines of cases converged in Mississippi University for Women v. Hogan,1927 in which the Court stiffened and applied its standards for evaluating claimed benign distinctions benefitting women and additionally appeared to apply the intermediate standard itself more strictly. The case involved a male nurse who wished to attend a female-only nursing school located in the city in which he lived and worked; if he could not attend this particular school he would have had to commute 147 miles to another nursing school that did accept men, and he would have had difficulty doing so and retaining his job. The state defended on the basis that the female-only policy was justified as providing “educational affirmative action for females.” Recitation of a benign purpose, the Court said, was not alone sufficient. “[A] State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefitted by the classification actually suffer a disadvantage related to the classification.”1928 But women did not lack opportunities to obtain training in nursing; instead they dominated the field. In the Court’s view, the state policy did not compensate for discriminatory barriers facing women, but it perpetuated the stereotype of nursing as a woman’s job. “[A]lthough the State recited a ‘benign, compensatory purpose,’ it failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification.”1929 Even if the classification was premised on the proffered basis, the Court concluded, it did not substantially and directly relate to the objective, because the school permitted men to audit the nursing classes and women could still be adversely affected by the presence of men.1930

In a 1996 case, the Court required that a state demonstrate “exceedingly persuasive justification” for gender discrimination. When a female applicant challenged the exclusion of women from the historically male-only Virginia Military Institute (VMI), the State of Virginia defended the exclusion of females as essential to the nature of training at the military school.1931 The state argued that the VMI program, which included rigorous physical training, deprivation of personal privacy, and an “adversative model” that featured minute regulation of behavior, would need to be unacceptably modified to facilitate the admission of women. While recognizing that women’s admission would require accommodation such as different housing assignments and physical training programs, the Court found that the reasons set forth by the state were not “exceedingly persuasive,” and thus the state did not meet its burden of justification. The Court also rejected the argument that a parallel program established by the state at a private women’s college served as an adequate substitute, finding that the program lacked the military-style structure found at VMI, and that it did not equal VMI in faculty, facilities, prestige or alumni network.

The Court in Sessions v. Morales-Santana applied the “exceedingly persuasive justification” test to strike down a gender-based classification found in a statute that allowed for the acquisition of U. S. citizenship by a child born abroad to an unwed couple if one of the parents was a U. S. citizen.1932 The law at issue in MoralesSantana, which had been enacted many decades earlier, conditioned the grant of citizenship on the U. S. citizen parent’s physical presence in the United States prior to the child’s birth, providing a shorter presence requirement for an unwed U. S. citizen mother relative to the unwed U. S. citizen father.1933 According to the majority, such a classification “must substantially serve an important government interest today,”1934 and the law in question was based on “two once habitual, but now untenable, assumptions”: (1) that marriage presupposes that the husband is dominant and the wife is subordinate; (2) an unwed mother is the natural and sole guardian of a non-marital child.1935 Having found that the law was an “over-broad generalization[]” about males and females and was based on the “obsolescing view” about unwed fathers,1936 the Court concluded that the citizenship provision’s “discrete duration-of-residency requirements for unwed mothers and fathers who have accepted parental responsibility [was] stunningly anachronistic.”1937

In response to what the lower court had described as the “most vexing problem” in the case,1938 the Morales-Santana Court, in crafting a remedy for the equal protection violation, deviated from the presumption that “extension, rather than nullification” of the denied benefit is generally the “proper course.”1939 The Court observed that Congress had established derivative citizenship rules that varied depending upon whether one or both parents were U. S. citizens and whether the child was born in or outside marriage.1940 Justice Ginsburg writing for the majority concluded that extending the much-shorter physical presence requirement applicable to unwed U. S. citizen mothers to unwed U. S. citizen fathers would run significantly counter to Congress’s intentions when it established this statutory scheme, because such a remedy would result in a longer physical presence requirement for a married U. S. citizen who had a child abroad than for a similarly situated unmarried U. S. citizen.1941 As a result, the Court held that the longer physical presence requirement for unwed U. S. citizen fathers governed, as that is the remedy that “Congress likely would have chosen had it been apprised of the constitutional infirmity.”1942

Another area presenting some difficulty is that of the relationship of pregnancy classifications to gender discrimination. In Cleveland Board of Education v. LaFleur,1943 which was decided upon due process grounds, two school systems requiring pregnant school teachers to leave work four and five months respectively before the expected childbirths were found to have acted arbitrarily and irrationally in establishing rules not supported by anything more weighty than administrative convenience buttressed with some possible embarrassment of the school boards in the face of pregnancy. On the other hand, the exclusion of pregnancy from a state financed program of payments to persons disabled from employment was upheld against equal protection attack as supportable by legitimate state interests in the maintenance of a self-sustaining program with rates low enough to permit the participation of low-income workers at affordable levels.1944 The absence of supportable reasons in one case and their presence in the other may well have made the significant difference.


After wrestling in a number of cases with the question of the permissibility of governmental classifications disadvantaging il-legitimates and the standard for determining which classifications are sustainable, the Court arrived at a standard difficult to state and even more difficult to apply.1945 Although “illegitimacy 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.1946 The common rationale of all the illegitimacy cases is not clear, is in many respects not wholly consistent,1947 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 that some illegitimates who would otherwise qualify in terms of the statute’s legitimate purposes are disabled from participation, the imposition of greater burdens upon illegitimates or some classes of illegitimates than upon legitimates is permissible.1948

Intestate succession rights for illegitimates 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 illegitimates the right to share equally with legitimates in the estate of their common father, who had acknowledged the illegitimates but who had died intestate.1949 Labine was strongly disapproved, however, and virtually overruled in Trimble v. Gordon,1950 which found an equal protection violation in a statute allowing illegitimate children 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.1951 Second, the assertion that the statute mirrored the assumed intent of decedents, in that, knowing of the statute’s operation, they would have acted to counteract it through a will or otherwise, was rejected as unproved and unlikely.1952 Third, the argument that the law presented no insurmountable barrier to illegitimates inheriting since a decedent could have left a will, married the mother, or taken steps to legitimate the child, was rejected as inapposite.1953 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 illegitimate children of 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.”1954 Because the state law did not follow a reasonable middle ground, it was invalidated.

A reasonable middle ground was discerned, at least by Justice Powell, in Lalli v. Lalli,1955 concerning a statute that permitted legitimate children to inherit automatically from both their parents, while illegitimates 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 illegitimate children and avoiding spurious claims against intestate estates. To be sure, some illegitimates who were unquestionably established as children of the decreased 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.1956

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 legitimate children a right to judicial action to obtain support from their fathers while not affording the right to illegitimate children denied the latter equal protection. “[A] State may not invidiously discriminate against illegitimate children 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.”1957

Similarly, the Court struck down a federal Social Security provision that made eligible for benefits, because of an insured parent’s disability, all legitimate children as well as those illegitimate children capable of inheriting personal property under state intestacy law and those children who were illegitimate only because of a nonobvious defect in their parents’ marriage, regardless of whether they were born after the onset of the disability, but that made all other illegitimate children eligible only if they were born prior to the onset of disability and if they were dependent upon 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 illegitimates was necessary to avoid fraud.1958

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 legitimate children as well as those illegitimate children who were able to inherit under state intestacy laws, who were illegitimate 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 been held entitled to the father’s support by a court. Illegitimate children 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 illegitimate children 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.1959

Fundamental Interests: The Political Process

“The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised . . . , absent of course the discrimination which the Constitution condemns.”1960 The Constitution provides that the qualifications of electors in congressional elections are to be determined by reference to the qualifications prescribed in the states for the electors of the most numerous branch of the legislature, and the states are authorized to determine the manner in which presidential electors are selected.1961 The second section of the Fourteenth Amendment provides for a proportionate reduction in a state’s representation in the House when it denies the franchise to its qualified male citizens1962 and specific discriminations on the basis of race, sex, and age are addressed in other Amendments. “We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record . . . are obvious examples indicating factors which a state may take into consideration in determining the qualification of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot.”1963

The perspective of this 1959 opinion by Justice Douglas has now been revolutionized. “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the rights of citizens to vote must be carefully and meticulously scrutinized.”1964 “Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. . . . Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest.”

“And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. . . . [W]hen we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable.”1965 Using this analytical approach, the Court has established a regime of close review of a vast range of state restrictions on the eligibility to vote, on access to the ballot by candidates and parties, and on the weighing of votes cast through the devices of apportionment and districting. Changes in Court membership over the years has led to some relaxation in the application of principles, but even as the Court has drawn back in other areas it has tended to preserve, both doctrinally and in fact, the election cases.1966

Voter Qualifications.—States may require residency as a qualification to vote, but “durational residence laws . . . are unconstitutional unless the State can demonstrate that such laws are necessary to promote a compelling governmental interest.”1967 The Court applies “[t]his exacting test” because the right to vote is “a fundamental political right, . . . preservative of all rights,” and because a “durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.”1968 The Court indicated that the states have “a legitimate and compelling interest” in preventing fraud by voters, but that “it is impossible to view durational residence requirements as necessary to achieve that state interest.”1969

However, a 50-day durational residence requirement was sustained in the context of the closing of the registration process at 50 days prior to elections and of the mechanics of the state’s registration process. The period, the Court found, was necessary to achieve the state’s legitimate goals.1970

A state that exercised general criminal, taxing, and other jurisdiction over persons on certain federal enclaves within the state, the Court held, could not treat these persons as nonresidents for voting purposes.1971 A statute that provided that anyone who entered military service outside the state could not establish voting residence in the state so long as he remained in the military was held to deny to such a person the opportunity such as all nonmilitary persons enjoyed of showing that he had established residence.1972 Restricting the suffrage to those persons who had paid a poll tax was an invidious discrimination because it introduced a “capricious or irrelevant factor” of wealth or ability to pay into an area in which it had no place.1973 Extending this ruling, the Court held that the eligibility to vote in local school elections may not be limited to persons owning property in the district or who have children in school,1974 and denied states the right to restrict the vote to property owners in elections on the issuance of revenue bonds1975 or general obligation bonds.1976 By contrast, the Court upheld a statute that required voters to present a government-issued photo identification in order to vote, as the state had not “required voters to pay a tax or a fee to obtain a new photo identification.” The Court added that, although obtaining a government-issued photo identification is an “inconvenience” to voters, it “surely does not qualify as a substantial burden.”1977

The Court has also held that, because the activities of a water storage district fell so disproportionately on landowners as a group, a limitation of the franchise in elections for the district’s board of directors to landowners, whether resident or not and whether natural persons or not, excluding non-landowning residents and lessees of land, and weighing the votes granted according to assessed valuation of land, comported with equal protection standards.1978 Adverting to the reservation in prior local governmental unit election cases1979 that some functions of such units might be so specialized as to permit deviation from the usual rules, the Court then proceeded to assess the franchise restrictions according to the traditional standards of equal protection rather than by those of strict scrutiny.1980 Also narrowly approached was the issue of the effect of the District’s activities, the Court focusing upon the assessments against landowners as the sole means of paying expenses rather than additionally noting the impact upon lessees and non-landowning residents of such functions as flood control. The approach taken in this case seems different in great degree from that in prior cases and could in the future alter the results in other local government cases. These cases were extended somewhat in Ball v. James,1981 a 5-to-4 decision that sustained a system in which voting eligibility was limited to landowners and votes were allocated to these voters on the basis of the number of acres they owned. The entity was a water reclamation district that stores and delivers water to 236,000 acres of land in the state and subsidizes its water operations by selling electricity to hundreds of thousands of consumers in a nearby metropolitan area. The entity’s board of directors was elected through a system in which the eligibility to vote was as described above. The Court thought the entity was a specialized and limited form to which its general franchise rulings did not apply.1982

Finding that prevention of “raiding”—the practice whereby voters in sympathy with one party vote in another’s primary election in order to distort that election’s results—is a legitimate and valid state goal, as one element in the preservation of the integrity of the electoral process, the Court sustained a state law requiring those voters eligible at that time to register to enroll in the party of their choice at least 30 days before the general election in order to be eligible to vote in the party’s next primary election, 8 to 11 months hence. The law did not impose a prohibition upon voting but merely imposed a time deadline for enrollment, the Court held, and it was because of the plaintiffs’ voluntary failure to register that they did not meet the deadline.1983 But a law that prohibited a person from voting in the primary election of a political party if he had voted in the primary election of any other party within the preceding 23 months was subjected to strict scrutiny and was voided, because it constituted a severe restriction upon a voter’s right to associate with the party of his choice by requiring him to forgo participation in at least one primary election in order to change parties.1984 A less restrictive “closed primary” system was also invalidated, the Court finding insufficient justification for a state’s preventing a political party from allowing independents to vote in its primary.1985

It must not be forgotten, however, that it is only when a state extends the franchise to some and denies it to others that a “right to vote” arises and is protected by the Equal Protection Clause. If a state chooses to fill an office by means other than through an election, neither the Equal Protection Clause nor any other constitutional provision prevents it from doing so. Thus, in Rodriguez v. Popular Democratic Party,1986 the Court unanimously sustained a Puerto Rico statute that authorized the political party to which an incumbent legislator belonged to designate his successor in office until the next general election upon his death or resignation. Neither the fact that the seat was filled by appointment nor the fact that the appointment was by the party, rather than by the governor or some other official, raised a constitutional question.

The right of unconvicted jail inmates and convicted misdemeanants (who typically are under no disability) to vote by absentee ballot remains unsettled. In an early case applying rational basis scrutiny, the Court held that the failure of a state to provide for absentee balloting by unconvicted jail inmates, when absentee ballots were available to other classes of voters, did not deny equal protection when it was not shown that the inmates could not vote in any other way.1987 Subsequently, the Court held unconstitutional a statute denying absentee registration and voting rights to persons confined awaiting trial or serving misdemeanor sentences, but it is unclear whether the basis was the fact that persons confined in jails outside the county of their residences could register and vote absentee while those confined in the counties of their residences could not, or whether the statute’s jumbled distinctions among categories of qualified voters on no rational standard made it wholly arbitrary.1988

Access to the Ballot.—The Equal Protection Clause applies to state specification of qualifications for elective and appointive office. Although one may “have no right” to be elected or appointed to an office, all persons “do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualification. The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees.”1989 In Bullock v. Carter,1990 the Court used a somewhat modified form of the strict test in passing upon a filing fee system for primary election candidates that imposed the cost of the election wholly on the candidates and that made no alternative provision for candidates unable to pay the fees; the reason for application of the standard, however, was that the fee system deprived some classes of voters of the opportunity to vote for certain candidates and it worked its classifications along lines of wealth. The system itself was voided because it was not reasonably connected with the state’s interest in regulating the ballot and did not serve that interest and because the cost of the election could be met out of the state treasury, thus avoiding the discrimination.1991

Recognizing the state interest in maintaining a ballot of reasonable length in order to promote rational voter choice, the Court observed nonetheless that filing fees alone do not test the genuineness of a candidacy or the extent of voter support for an aspirant. Therefore, effectuation of the legitimate state interest must be achieved by means that do not unfairly or unnecessarily burden the party’s or the candidate’s “important interest in the continued availability of political opportunity. The interests involved are not merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both and it is this broad interest that must be weighed in the balance. . . . [T]he process of qualifying candidates for a place on the ballot may not constitutionally be measured solely in dollars.”1992 In the absence of reasonable alternative means of ballot access, the Court held, a state may not disqualify an indigent candidate unable to pay filing fees.1993

In Clements v. Fashing,1994 the Court sustained two provisions of state law, one that barred certain officeholders from seeking election to the legislature during the term of office for which they had been elected or appointed, but that did not reach other officeholders whose terms of office expired with the legislators’ terms and did not bar legislators from seeking other offices during their terms, and the other that automatically terminated the terms of certain officeholders who announced for election to other offices, but that did not apply to other officeholders who could run for another office while continuing to serve. The Court was splintered in such a way, however, that it is not possible to derive a principle from the decision applicable to other fact situations.

In Williams v. Rhodes,1995 a complex statutory structure that had the effect of keeping off the ballot all but the candidates of the two major parties was struck down under the strict test because it deprived the voters of the opportunity of voting for independent and third-party candidates and because it seriously impeded the exercise of the right to associate for political purposes. Similarly, a requirement that an independent candidate for office in order to obtain a ballot position must obtain 25,000 signatures, including 200 signatures from each of at least 50 of the state’s 102 counties, was held to discriminate against the political rights of the inhabitants of the most populous counties, when it was shown that 93. 4% of the registered voters lived in the 49 most populous counties.1996 But to provide that the candidates of any political organization obtaining 20% or more of the vote in the last gubernatorial or presidential election may obtain a ballot position simply by winning the party’s primary election, while requiring candidates of other parties or independent candidates to obtain the signatures of less than five percent of those eligible to vote at the last election for the office sought, is not to discriminate unlawfully, because the state placed no barriers of any sort in the way of obtaining signatures and because write-in votes were also freely permitted.1997

Reviewing under the strict test the requirements for qualification of new parties and independent candidates for ballot positions, the Court recognized as valid objectives and compelling interests the protection of the integrity of the nominating and electing process, the promotion of party stability, and the assurance of a modicum of order in regulating the size of the ballot by requiring a showing of some degree of support for independents and new parties before they can get on the ballot.1998 “[T]o comply with the First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot.”1999 Decision whether or not a state statutory structure affords a feasible opportunity is a matter of degree, “very much a matter of ‘consider[ing] the facts and circumstances behind the law, the interest which the State claims to be protecting, and the interest of those who are disadvantaged by the classification.’”2000

Thus, in order to assure that parties seeking ballot space command a significant, measurable quantum of community support, Texas was upheld in treating different parties in ways rationally constructed to achieve this objective. Candidates of parties whose gubernatorial choice polled more than 200,000 votes in the last general election had to be nominated by primary elections and went on the ballot automatically, because the prior vote adequately demonstrated support. Candidates whose parties polled less than 200,000 but more than 2 percent could be nominated in primary elections or in conventions. Candidates of parties not coming within either of the first two categories had to be nominated in conventions and could obtain ballot space only if the notarized list of participants at the conventions totaled at least one percent of the total votes cast for governor in the last preceding general election or, failing this, if in the 55 succeeding days a requisite number of qualified voters signed petitions to bring the total up to one percent of the gubernatorial vote. “[W]hat is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot,” but the Court thought that one percent, or 22,000 signatures in 1972, “falls within the outer boundaries of support the State may require.”2001 Similarly, independent candidates can be required to obtain a certain number of signatures as a condition to obtain ballot space.2002 A state may validly require that each voter participate only once in each year’s nominating process and it may therefore disqualify any person who votes in a primary election from signing nominating or supporting petitions for independent parties or candidates.2003 Equally valid is a state requirement that a candidate for elective office, as an independent or in a regular party, must not have been affiliated with a political party, or with one other than the one of which he seeks its nomination, within one year prior to the primary election at which nominations for the general election are made.2004 So too, a state may limit access to the general election ballot to candidates who received at least 1% of the primary votes cast for the particular office.2005 But it is impermissible to print the names of the candidates of the two major parties only on the absentee ballots, leaving off independents and other parties.2006 Also invalidated was a requirement that independent candidates for President and Vice-President file nominating petitions by March 20 in order to qualify for the November ballot.2007

Apportionment and Districting.—Prior to 1962, attacks in federal courts on the drawing of boundaries for congressional2008 and legislative election districts or the apportionment of seats to previously existing units ran afoul of the “political question” doctrine.2009 Baker v. Carr,2010 however, reinterpreted the doctrine to a considerable degree and opened the federal courts to voter complaints founded on unequally populated voting districts. Wesberry v. Sanders2011 found that Article I, § 2, of the Constitution required that, in the election of Members of the House of Representatives, districts were to be made up of substantially equal numbers of persons. In six decisions handed down on June 15, 1964, the Court required the alteration of the election districts for practically all the legislative bodies in the United States.2012

“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with the votes of citizens living in other parts of the State.”2013 What was required was that each state “make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.”2014

Among the principal issues raised by these decisions were which units were covered by the principle, to what degree of exactness population equality had to be achieved, and to what other elements of the apportionment and districting process the Equal Protection Clause extended.

The first issue has largely been resolved, although a few problem areas persist. It has been held that a school board, the members of which were appointed by boards elected in units of disparate populations, and that exercised only administrative powers rather than legislative powers, was not subject to the principle of the apportionment ruling.2015 Avery v. Midland County2016 held that, when a state delegates lawmaking power to local government and provides for the election by district of the officials to whom the power is delegated, the districts must be established of substantially equal populations. But, in Hadley v. Junior College District,2017 the Court abandoned much of the limitation that was explicit in these two decisions and held that, whenever a state chooses to vest “governmental functions” in a body and to elect the members of that body from districts, the districts must have substantially equal populations. The “governmental functions” should not be characterized as “legislative” or “administrative” or necessarily important or unimportant; it is the fact that members of the body are elected from districts that triggers the application.2018

The second issue has been largely but not precisely resolved. In Swann v. Adams,2019 the Court set aside a lower court ruling “for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts. . . . De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy.” Two congressional districting cases were disposed of on the basis of Swann,2020 but, although the Court ruled that no congressional districting could be approved without “a good-faith effort to achieve precise mathematical equality” or the justification of “each variance, no matter how small,”2021 it did not apply this strict standard to state legislative redistricting.2022 And, in Abate v. Mundt,2023 the Court approved a plan for apportioning a county governing body that permitted a substantial population disparity, explaining that in the absence of a built-in bias tending to favor any particular area or interest, a plan could take account of localized factors in justifying deviations from equality that might in other circumstances invalidate a plan.2024 The total population deviation allowed in Abate was 11. 9%; the Court refused, however, to extend Abate to approve a total deviation of 78% resulting from an apportionment plan providing for representation of each of New York City’s five boroughs on the New York City Board of Estimate.2025

Nine years after Reynolds v. Sims, the Court reexamined the population equality requirement of the apportionment cases. Relying upon language in prior decisions that distinguished state legislative apportionment from congressional districting as possibly justifying different standards of permissible deviations from equality, the Court held that more flexibility is constitutionally permissible with respect to the former than to the latter.2026 But it was in determining how much greater flexibility was permissible that the Court moved in new directions. First, applying the traditional standard of rationality rather than the strict test of compelling necessity, the Court held that a maximum 16. 4% deviation from equality of population was justified by the state’s policy of maintaining the integrity of political subdivision lines, or according representation to subdivisions qua subdivisions, because the legislature was responsible for much local legislation.2027 Second, just as the first case “demonstrates, population deviations among districts may be sufficiently large to require justification but nonetheless be justifiable and legally sustainable. It is now time to recognize . . . that minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.”2028 This recognition of a de minimis deviation, below which no justification was necessary, was mandated, the Court felt, by the margin of error in census statistics, by the population change over the ten-year life of an apportionment, and by the relief it afforded federal courts by enabling them to avoid over-involvement in essentially a political process. The “goal of fair and effective representation” is furthered by eliminating gross population variations among districts, but it is not achieved by mathematical equality solely. Other relevant factors are to be taken into account.2029 But when a judicially imposed plan is to be formulated upon state default, it “must ordinarily achieve the goal of population equality with little more than de minimis variation,” and deviations from approximate population equality must be supported by enunciation of historically significant state policy or unique features.2030

Subsequently, in its 2016 decision in Harris v. Arizona Independent Redistricting Commission, the Court reiterated the significance of the 10% threshold in challenges to state legislative voting districts, observing that “attacks on deviations under 10% will succeed only rarely, in unusual cases.”2031 Instead, challengers must show that it is “more probable than not” that the deviation “reflects the predominance of illegitimate reapportionment factors rather than . . . legitimate considerations.”2032 The Court unanimously agreed that the challengers in Harris had failed to meet this burden, as the record supported the district court’s conclusion that the deviation here—which was 8. 8%—reflected the redistricting commission’s efforts to achieve compliance with the Voting Rights Act, and not to secure political advantage for the Democratic party.2033 In particular, the Court noted that the difference in population between Democratic- and Republican-leaning districts may simply reflect the residential and voting patterns of minorities, and the redistricting commission’s efforts to maintain “ability-to-elect districts” (i. e. , districts favorable to the election of minority candidates).2034 In the Court’s view, there was no showing of “illegitimate factors” here, unlike in certain earlier cases (e. g. , the creation of districts that seem to have no relation to keeping counties whole or preserving the cores of prior districts).2035 The Court further noted that its decision in Shelby County v. Holder,2036 which held unconstitutional a section of the Voting Rights Act relevant to this case, did not mean that Arizona’s attempt to comply with the Act could not have been a legitimate state interest, as Arizona created the plan at issue in 2010, and Shelby County was not decided until 2013.2037

Gerrymandering and the permissible use of multimember districts present examples of the third major issue. It is clear that racially based gerrymandering is unconstitutional under the Fifteenth Amendment, at least when it is accomplished through the manipulation of district lines.2038 Even if racial gerrymandering is intended to benefit minority voting populations, it is subject to strict scrutiny under the Equal Protection Clause if “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.”2039 A challenger can show racial predominance by “demonstrating that the legislature ‘subordinated’ other factors—compactness, respect for political subdivisions, partisan advantage, what have you—to ‘racial considerations.’”2040 Showing that a district’s “bizarre” shape departs from traditional districting principles such as compactness, contiguity, and respect for political subdivision lines may serve to reinforce such a claim,2041 although a plurality of the Justices would not preclude the creation of “reasonably compact” majority-minority districts in order to remedy past discrimination or to comply with the requirements of the Voting Rights Act of 1965.2042 While the Court appeared to have weakened a challenger’s ability to establish equal protection claims in the early 2000s by deferring to a legislature’s articulation of legitimate political explanations for districting decisions, and by allowing for a correlation between race and political affiliation,2043 more recent cases have shown such challenges are not entirely foreclosed.2044

Partisan or “political” gerrymandering raises more difficult issues. Several lower courts ruled that the issue was beyond judicial cognizance,2045 and the Supreme Court itself, upholding an apportionment plan frankly admitted to have been drawn with the intent to achieve a rough approximation of the statewide political strengths of the two parties, recognized the goal as legitimate and observed that, while the manipulation of apportionment and districting is not wholly immune from judicial scrutiny, “we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.”2046

In 1986, however, in a decision of potentially major import reminiscent of Baker v. Carr, the Court in Davis v. Bandemer2047 ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause. But, although the vote was 6 to 3 in favor of justiciability, a majority of Justices could not agree on the proper test for determining whether particular gerrymandering is unconstitutional, and the lower court’s holding of unconstitutionality was reversed by vote of 7 to 2.2048 Thus, although courthouse doors were now ajar for claims of partisan gerrymandering, it was unclear what it would take to succeed on the merits.

On the justiciability issue, the Court viewed the “political question” criteria as no more applicable than they had been in Baker v. Carr. Because Reynolds v. Sims had declared “fair and effective representation for all citizens”2049 to be “the basic aim of legislative apportionment,” and because racial gerrymandering issues had been treated as justiciable, the Court viewed the representational issues raised by partisan gerrymandering as indistinguishable. Agreement as to the existence of “judicially discoverable and manageable standards for resolving” gerrymandering issues, however, did not result in a consensus as to what those standards are.2050 Although a majority of Justices agreed that discriminatory effect as well as discriminatory intent must be shown, there was significant disagreement as to what constitutes discriminatory effect.

Justice White’s plurality opinion suggested that there need be “evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.”2051 Moreover, continued frustration of the chance to influence the political process cannot be demonstrated by the results of only one election; there must be a history of disproportionate results or a finding that such results will continue. Justice Powell, joined by Justice Stevens, did not formulate a strict test, but suggested that “a heavy burden of proof” should be required, and that courts should look to a variety of factors as they relate to “the fairness of a redistricting plan” in determining whether it contains invalid gerrymandering. Among these factors are the shapes of the districts, adherence to established subdivision lines, statistics relating to vote dilution, the nature of the legislative process by which the plan was formulated, and evidence of intent revealed in legislative history.2052

In the following years, however, litigants seeking to apply Davis against alleged partisan gerrymandering were generally unsuccessful. Then, when the Supreme Court revisited the issue in 2004, it all but closed the door on such challenges. In Vieth v. Jubelirer,2053 a four-Justice plurality would have overturned Davis v. Bandemer’s holding that challenges to political gerrymandering are justiciable, but five Justices disagreed. The plurality argued that partisan considerations are an intrinsic part of establishing districts,2054 that no judicially discernable or manageable standards exist to evaluate unlawful partisan gerrymandering,2055 and that the power to address the issue of political gerrymandering resides in Congress.2056

Of the five Justices who believed that challenges to political gerrymandering are justiciable, four dissented, but Justice Kennedy concurred with the four-Justice plurality’s holding, thereby upholding Pennsylvania’s congressional redistricting plan against a political gerrymandering challenge. Justice Kennedy agreed that the lack “of any agreed upon model of fair and effective representation” or “substantive principles of fairness in districting” left the Court with “no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights.”2057 But, though he concurred in the holding, Justice Kennedy held out hope that judicial relief from political gerrymandering may be possible “if some limited and precise rationale were found” to evaluate partisan redistricting. Davis v. Bandemer was thus preserved.2058

In League of United Latin American Citizens v. Perry, a widely splintered Supreme Court plurality largely upheld a Texas congressional redistricting plan that the state legislature had drawn mid-decade, seemingly with the sole purpose of achieving a Republican congressional majority.2059 The plurality did not revisit the justiciability question, but examined “whether appellants’ claims offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution.”2060 The plurality was “skeptical . . . of a claim that seeks to invalidate a statute based on a legislature’s unlawful motive but does so without reference to the content of the legislation enacted.” For one thing, although “[t]he legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, . . . partisan aims did not guide every line it drew.”2061 Apart from that, the “sole-motivation theory” fails to show what is necessary to identify an unconstitutional act of partisan gerrymandering: “a burden, as measured by a reliable standard, on the complainants’ representational rights.”2062 Moreover, “[t]he sole-intent standard . . . is no more compelling when it is linked to . . . mid-decennial legislation. . . . [T]here is nothing inherently suspect about a legislature’s decision to replace a mid-decade a court-ordered plan with one of its own. And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders.”2063 The plurality also found “that mid-decade redistricting for exclusively partisan purposes” did not in this case “violate[ ] the one-person, one-vote requirement.”2064 Because ordinary mid-decade districting plans do not necessarily violate the one-person, one-vote requirement, the only thing out of the ordinary with respect to the Texas plan was that it was motivated solely by partisan considerations, and the plurality had already rejected the sole-motivation theory.2065 League of United Latin American Citizens v. Perry thus left earlier Court precedent essentially unchanged. Claims of unconstitutional partisan gerrymandering are justiciable, but a reliable measure of what constitutes unconstitutional partisan gerrymandering remains to be found.

It had been thought that the use of multimember districts to submerge racial, ethnic, and political minorities might be treated differently,2066 but in Whitcomb v. Chavis2067 the Court, while dealing with the issue on the merits, so enveloped it in strict standards of proof and definitional analysis as to raise the possibility that it might be beyond judicial review. In Chavis the Court held that inasmuch as the multimember districting represented a state policy of more than 100 years observance and could not therefore be said to be motivated by racial or political bias, only an actual showing that the multimember delegation in fact inadequately represented the allegedly submerged minority would suffice to raise a constitutional question. But the Court also rejected as impermissible the argument that any interest group had any sort of right to be represented in a legislative body, in proportion to its members’ numbers or on some other basis, so that the failure of that group to elect anyone merely meant that alone or in combination with other groups it simply lacked the strength to obtain enough votes, whether the election be in single-member or in multimember districts. That fact of life was not of constitutional dimension, whether the group was composed of blacks, or Republicans or Democrats, or some other category of persons. Thus, the submerging argument was rejected, as was the argument of a voter in another county that the Court should require uniform single-member districting in populous counties because voters in counties that elected large delegations in blocs had in effect greater voting power than voters in other districts; this argument the Court found too theoretical and too far removed from the actualities of political life.

Subsequently, and surprisingly in light of Chavis, the Court in White v. Regester2068 affirmed a district court invalidation of the use of multimember districts in two Texas counties on the ground that, when considered in the totality of the circumstances of discrimination in registration and voting and in access to other political opportunities, such use denied African-Americans and Mexican-Americans the opportunity to participate in the election process in a reliable and meaningful manner.2069

Doubt was cast on the continuing vitality of White v. Regester, however, by the badly split opinion of the Court in City of Mobile v. Bolden.2070 A plurality undermined the earlier case in two respects, although it is not at all clear that a majority of the Court had been or could be assembled on either point. First, the plurality argued that an intent to discriminate on the part of the redistricting body must be shown before multimember districting can be held to violate the Equal Protection Clause.2071 Second, the plurality read White v. Regester as being consistent with this principle and the various factors developed in that case to demonstrate the existence of unconstitutional discrimination to be in fact indicia of intent; however, the plurality seemingly disregarded the totality of circumstances test used in Regester and evaluated instead whether each factor alone was sufficient proof of intent.2072

Again switching course, the Court in Rogers v. Lodge2073 approved the findings of the lower courts that a multimember electoral system for electing a county board of commissioners was being maintained for a racially discriminatory purpose, although it had not been instituted for that purpose. Applying a totality of the circumstances test, and deferring to lower court factfinding, the Court, in an opinion by one of the Mobile dissenters, canvassed a range of factors that it held could combine to show a discriminatory motive, and largely overturned the limitations that the Mobile plurality had attempted to impose in this area. With the enactment of federal legislation specifically addressed to the issue of multimember districting and dilution of the votes of racial minorities, however, it may be that the Court will have little further opportunity to develop the matter in the context of constitutional litigation.2074 In Thornburg v. Gingles,2075 the Court held that multimember districting violates § 2 of the Voting Rights Act by diluting the voting power of a racial minority when that minority is “sufficiently large and geographically compact to constitute a majority in a single-member district,” when it is politically cohesive, and when block voting by the majority “usually” defeats preferred candidates of the minority.

Finally, the Court has approved the discretionary exercise of equity powers by the lower federal courts in drawing district boundaries and granting other relief in districting and apportionment cases,2076 although that power is bounded by the constitutional violations found, so that courts do not have carte blanche, and they should ordinarily respect the structural decisions made by state legislatures and the state constitutions.2077

Counting and Weighing of Votes.—In Bush v. Gore,2078 a case of dramatic result but of perhaps limited significance for equal protection, the Supreme Court ended a ballot dispute that arose during the year 2000 presidential election. The Florida Supreme Court had ordered a partial manual recount of the Florida vote for Presidential Electors, requiring that all ballots that contained a “clear indication of the intent of the voter” be counted, but allowing the relevant counties to determine what physical characteristics of a ballot would satisfy this test. The Court held that the Equal Protection Clause would be violated by allowing arbitrary and disparate methods of discerning voter intent in the recounting of ballots. The decision was surprising to many, as a lack of uniformity in voting standards and procedures is inherent in the American system of decentralized voting administration. The Court, however, limited its holding to “the present circumstances,” where “a state court with the power to assure uniformity” fails to provide “minimal procedural safeguards.”2079 Citing the “many complexities” of application of equal protection “in election processes generally,” the Court distinguished the many situations where disparate treatment of votes results from different standards being applied by different local jurisdictions.

In cases where votes are given more or less weight by operation of law, it is not the weighing of votes itself that may violate the 14th Amendment, but the manner in which it is done. Gray v. Sanders,2080 for instance, struck down the Georgia county unit system under which each county was allocated either two, four, or six votes in statewide elections and the candidate carrying the county received those votes. Because there were a few very populous counties and scores of poorly populated ones, the rural counties in effect dominated statewide elections and candidates with popular majorities statewide could be and were defeated. But Gordon v. Lance2081 approved a provision requiring a 60-percent affirmative vote in a referendum election before constitutionally prescribed limits on bonded indebtedness or tax rates could be exceeded. The Court acknowledged that the provision departed from strict majority rule but stated that the Constitution did not prescribe majority rule; it instead proscribed discrimination through dilution of voting power or denial of the franchise because of some class characteristic—race, urban residency, or the like—and the provision at issue in this case was neither directed to nor affected any identifiable class.

The Right to Travel

The doctrine of the “right to travel” actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between states, a right venerable for its longevity, but still lacking a clear doctrinal basis.2082 The second, expressly addressed by the first sentence of Article IV, provides a citizen of one state who is temporarily visiting another state the “Privileges and Immunities” of a citizen of the latter state.2083 The third is the right of a new arrival to a state, who establishes citizenship in that state, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified period of time before taking advantage of the benefits of that state’s citizenship.

Durational Residency Requirements.—Challenges to durational residency requirements have traditionally been made under the Equal Protection Clause of the Fourteenth Amendment. In 1999, however, the Court approved a doctrinal shift, so that state laws that distinguished between their own citizens, based on how long they had been in the state, would be evaluated instead under the Privileges or Immunities Clause of the Fourteenth Amendment.2084 The Court did not, however, question the continuing efficacy of the earlier cases.

A durational residency requirement creates two classes of persons: those who have been within the state for the prescribed period and those who have not.2085 But persons who have moved recently, at least from state to state,2086 have exercised a right protected by the Constitution, and the durational residency classification either deters the exercise of that right or penalizes those who have exercised it.2087 Any such classification is invalid “unless shown to be necessary to promote a compelling governmental interest.”2088 The constitutional right to travel has long been recognized,2089 but it is only relatively recently that the strict standard of equal protection review has been applied to nullify durational residency requirements.

Thus, in Shapiro v. Thompson,2090 durational residency requirements conditioning eligibility for welfare assistance on one year’s residence in the state2091 were voided. If the purpose of the requirements was to inhibit migration by needy persons into the state or to bar the entry of those who came from low-paying states to higher-paying ones in order to collect greater benefits, the Court said, the purpose was impermissible.2092 If, on the other hand, the purpose was to serve certain administrative and related governmental objectives—the facilitation of the planning of budgets, the provision of an objective test of residency, minimization of opportunity for fraud, and encouragement of early entry of new residents into the labor force—then the requirements were rationally related to the purpose but they were not compelling enough to justify a classification that infringed a fundamental interest.2093 In Dunn v. Blumstein,2094 where the durational residency requirements denied the franchise to newcomers, such administrative justifications were found constitutionally insufficient to justify the classification.2095 The Privileges or Immunities Clause of the Fourteenth Amendment was the basis for striking down a California law that limited welfare benefits for California citizens who had resided in the state for less than a year to the level of benefits that they would have received in the state of their prior residence.2096

However, a state one-year durational residency requirement for the initiation of a divorce proceeding was sustained in Sosna v. Iowa.2097 Although it is not clear what the precise basis of the ruling is, it appears that the Court found that the state’s interest in requiring that those who seek a divorce from its courts be genuinely attached to the state and its desire to insulate divorce decrees from the likelihood of collateral attack justified the requirement.2098 Similarly, durational residency requirements for lower instate tuition at public colleges have been held constitutionally justifiable, again, however, without a clear statement of reason.2099 More recently, the Court has attempted to clarify these cases by distinguishing situations where a state citizen is likely to “consume” benefits within a state’s borders (such as the provision of welfare) from those where citizens of other states are likely to establish residency just long enough to acquire some portable benefit, and then return to their original domicile to enjoy them (such as obtaining a divorce decree or paying the in-state tuition rate for a college education).2100

A state scheme for returning to its residents a portion of the income earned from the vast oil deposits discovered within Alaska foundered upon the formula for allocating the dividends; that is, each adult resident received one unit of return for each year of residency subsequent to 1959, the first year of Alaska’s statehood. The law thus created fixed, permanent distinctions between an ever-increasing number of classes of bona fide residents based on how long they had been in the state. The differences between the durational residency cases previously decided did not alter the bearing of the right to travel principle upon the distribution scheme, but the Court’s decision went off on the absence of any permissible purpose underlying the apportionment classification and it thus failed even the rational basis test.2101

Still unresolved are issues such as durational residency requirements for occupational licenses and other purposes.2102 But this line of cases does not apply to state residency requirements themselves, as distinguished from durational provisions,2103 and the cases do not inhibit the states when, having reasons for doing so, they bar travel by certain persons.2104

Marriage and Familial Relations

In Zablocki v. Redhail,2105 importing into equal protection analysis the doctrines developed in substantive due process, the Court identified the right to marry as a “fundamental interest” that necessitates “critical examination” of governmental restrictions that “interfere directly and substantially” with the right.2106 The Court struck down a statute that prohibited any resident under an obligation to support minor children from marrying without a court order; such order could only be obtained upon a showing that the support obligation had been and was being complied with and that the children were not and were not likely to become public charges. The plaintiff was an indigent wishing to marry but prevented from doing so because he was not complying with a court order to pay support to an illegitimate child he had fathered, and because the child was receiving public assistance. Applying “critical examination,” the Court observed that the statutory prohibition could not be sustained unless it was justified by sufficiently important state interests and was closely tailored to effectuate only those interests.2107 Two interests were offered that the Court was willing to accept as legitimate and substantial: requiring permission under the circumstances furnished an opportunity to counsel applicants on the necessity of fulfilling support obligations, and the process protected the welfare of children who needed support, either by providing an incentive to make support payments or by preventing applicants from incurring new obligations through marriage. The first interest was not served, the Court found, there being no provision for counseling and no authorization of permission to marry once counseling had taken place. The second interest was found not to be effectuated by the means. Alternative devices to collect support existed, the process simply prevented marriage without delivering any money to the children, and it singled out obligations incurred through marriage without reaching any other obligations.

Other restrictions that relate to the incidents of or prerequisites for marriage were carefully distinguished by the Court as neither entitled to rigorous scrutiny nor put in jeopardy by the decision.2108 For example, in Califano v. Jobst,2109 a unanimous Court sustained a Social Security provision that revoked disabled dependents’ benefits of any person who married, except when the person married someone who was also entitled to receive disabled dependents’ benefits. Plaintiff, a recipient of such benefits, married someone who was also disabled but not qualified for the benefits, and his benefits were terminated. He sued, alleging that distinguishing between classes of persons who married eligible persons and who married ineligible persons infringed upon his right to marry. The Court rejected the argument, finding that benefit entitlement was not based upon need but rather upon actual dependency upon the insured wage earner; marriage, Congress could have assumed, generally terminates the dependency upon a parent-wage earner. Therefore, it was permissible as an administrative convenience to make marriage the terminating point but to make an exception when both marriage partners were receiving benefits, as a means of lessening hardship and recognizing that dependency was likely to continue. The marriage rule was therefore not to be strictly scrutinized or invalidated “simply because some persons who might otherwise have married were deterred by the rule or because some who did marry were burdened thereby.”2110

It seems obvious, therefore, that the determination of marriage and familial relationships as fundamental will be a fruitful beginning of litigation in the equal protection area.2111

Sexual Orientation

In Romer v. Evans,2112 the Supreme Court struck down a state constitutional amendment that both overturned local ordinances prohibiting discrimination against homosexuals, lesbians or bisexuals, and prohibited any state or local governmental action to either remedy discrimination or to grant preferences based on sexual orientation. The Court declined to follow the lead of the Supreme Court of Colorado, which had held that the amendment infringed on gays’ and lesbians’ fundamental right to participate in the political process.2113 The Court also rejected the application of the heightened standard reserved for suspect classes, and sought only to establish whether the legislative classification had a rational relation to a legitimate end.

The Court found that the amendment failed even this restrained review. Animus against a class of persons was not considered by the Court as a legitimate goal of government: “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”2114 The Court then rejected arguments that the amendment protected the freedom of association rights of landlords and employers, or that it would conserve resources in fighting discrimination against other groups. The Court found that the scope of the law was unnecessarily broad to achieve these stated purposes, and that no other legitimate rationale existed for such a restriction.

In United States v. Windsor,2115 the Court struck down Section 3 of the Defense of Marriage Act (DOMA), which provided that for purposes of any federal act, ruling, regulation, or interpretation by an administrative agency, the word “spouse” would mean a person of the opposite sex who is a husband or a wife.2116 In Windsor, the petitioner had been married to her same-sex partner in Canada and she lived in New York, where the marriage was recognized. After her partner died, the petitioner sought to claim a federal estate tax exemption for surviving spouses.2117 In examining the federal statute, the Court initially noted that, while “[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States,”2118 Section 3 of DOMA took the “unusual” step of departing from the “history and tradition of reliance on state law to define marriage” in order to alter the reach of over 1,000 federal laws and limit the scope of federal benefits.2119 Citing to Romer, the Court noted that discrimination of “unusual character” warranted more careful scrutiny.2120

In approving of same-sex marriages, the State of New York was conferring a “dignity and status of immense import,”2121 and the federal government, with Section 3 of DOMA, was aiming to impose “restrictions and disabilities” on and “injure the very class” New York sought to protect.2122 In so doing, the Court concluded that Section 3 of DOMA was motivated by improper animus or purpose because the law’s avowed “purpose and practical” effect was to “impose a . . . stigma upon all who enter into same-sex marriages made lawful” by the states.2123 Holding that “no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,”2124 the Court held that Section 3 of DOMA violates “basic due process and equal protection principles applicable to the Federal Government.”2125 In striking down Section 3, the Court did not expressly set out what test the government must meet to justify laws calling for differentiated treatment based on sexual orientation.

subject validated several state laws limiting the licensing and recognition of marriage to two people of the opposite sex.2126 While the decision primarily rested on substantive due process grounds,2127 the Court noted that the “right of same sex couples to marry” is “derived, too,” from the Fourteenth Amendment’s Equal Protection Clause.2128 In so holding, the Court recognized a general “synergy” between the Due Process Clause and the Equal Protection Clause, noting that just as evolving societal norms inform the liberty rights of same-sex couples, so too do “new insights and societal understandings” about homosexuality reveal “unjustified inequality” with respect to traditional concepts about the institution of marriage.2129 In this sense, the Court viewed marriage laws prohibiting the licensing and recognition of same-sex marriages as working a grave and continuing harm to same-sex couples, serving to “disrespect and subordinate them.”2130 As a result, the Court ruled that the Equal Protection Clause prevents states from excluding same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.2131

Poverty and Fundamental Interests: The Intersection of Due Process and Equal Protection

Generally.—Whatever may be the status of wealth distinctions per se as a suspect classification,2132 there is no doubt that when the classification affects some area characterized as or considered to be fundamental in nature in the structure of our polity— the ability of criminal defendants to obtain fair treatment throughout the system, the right to vote, to name two examples—then the classifying body bears a substantial burden in justifying what it has done. The cases begin with Griffin v. Illinois,2133 surely one of the most seminal cases in modern constitutional law. There, the state conditioned full direct appellate review—review to which all convicted defendants were entitled—on the furnishing of a bill of exceptions or report of the trial proceedings, in the preparation of which the stenographic transcript of the trial was usually essential. Only indigent defendants sentenced to death were furnished free transcripts; all other convicted defendants had to pay a fee to obtain them. “In criminal trials,” Justice Black wrote in the plurality opinion, “a State can no more discriminate on account of poverty than on account of religion, race, or color.” Although the state was not obligated to provide an appeal at all, when it does so it may not structure its system “in a way that discriminates against some convicted defendants on account of their poverty.” The system’s fault was that it treated defendants with money differently from defendants without money. “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”2134

The principle of Griffin was extended in Douglas v. California,2135 in which the court held to be a denial of due process and equal protection a system whereby in the first appeal as of right from a conviction counsel was appointed to represent indigents only if the appellate court first examined the record and determined that counsel would be of advantage to the appellant. “There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshaling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.”2136

From the beginning, Justice Harlan opposed reliance on the Equal Protection Clause at all, arguing that a due process analysis was the proper criterion to follow. “It is said that a State cannot discriminate between the ‘rich’ and the ‘poor’ in its system of criminal appeals. That statement of course commands support, but it hardly sheds light on the true character of the problem confronting us here. . . . All that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action.” A fee system neutral on its face was not a classification forbidden by the Equal Protection Clause. “[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against ‘indigents’ by name would be unconstitutional.”2137 As he protested in Douglas: “The States, of course, are prohibited by the Equal Protection Clause from discriminating between ‘rich’ and ‘poor’ as such in the formulation and application of their laws. But it is a far different thing to suggest that this provision prevents the State from adopting a law of general applicability that may affect the poor more harshly than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely.”2138

Due process furnished the standard, Justice Harlan felt, for determining whether fundamental fairness had been denied. Where an appeal was barred altogether by the imposition of a fee, the line might have been crossed to unfairness, but on the whole he did not see that a system that merely recognized differences between and among economic classes, which as in Douglas made an effort to ameliorate the fact of the differences by providing appellate scrutiny of cases of right, was a system that denied due process.2139

The Court has reiterated that both due process and equal protection concerns are implicated by restrictions on indigents’ exersubject process concerns were involved because the States involved had set up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. Equal protection concerns were involved because the State treated a class of defendants—indigent ones—differently for purposes of offering them a meaningful appeal.”2140

Criminal Procedure.—Criminal appeals“ [I]t is now fundamental that, once established, . . . avenues [of appellate review] must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.”2141 “In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds. . . .”2142 No state may condition the right to appeal2143 or the right to file a petition for habeas corpus2144 or other form of postconviction relief upon the payment of a docketing fee or some other type of fee when the petitioner has no means to pay. Similarly, although the states are not required to furnish full and complete transcripts of their trials to indigents when excerpted versions or some other adequate substitute is available, if a transcript is necessary to adequate review of a conviction, either on appeal or through procedures for postconviction relief, the transcript must be provided to indigent defendants or to others unable to pay.2145 This right may not be denied by drawing a felony-misdemeanor distinction or by limiting it to those cases in which confinement is the penalty.2146 A defendant’s right to counsel is to be protected as well as the similar right of the defendant with funds.2147 The right to counsel on appeal necessarily means the right to effective assistance of counsel.2148

But, deciding a point left unresolved in Douglas, the Court held that neither the Due Process nor the Equal Protection Clause requires a state to furnish counsel to a convicted defendant seeking, after he had exhausted his appeals of right, to obtain discretionary review of his case in the state’s higher courts or in the United States Supreme Court. Due process does not require that, after an appeal has been provided, the state must always provide counsel to indigents at every stage. “Unfairness results only if indigents are singled out by the State and denied meaningful access to that system because of their poverty.” That essentially equal protection issue was decided against the defendant in the context of an appellate system in which one appeal could be taken as of right to an intermediate court, with counsel provided if necessary, and in which further appeals might be granted not primarily upon any conclusion about the result below but upon considerations of significant importance.2149 Not even death row inmates have a constitutional right to an attorney to prepare a petition for collateral relief in state court.2150

This right to legal assistance, especially in the context of the constitutional right to the writ of habeas corpus, means that in the absence of other adequate assistance, as through a functioning public defender system, a state may not deny prisoners legal assistance of another inmate2151 and it must make available certain minimal legal materials.2152

The Criminal Sentence.—A convicted defendant may not be imprisoned solely because of his indigency. Williams v. Illinois2153 held that it was a denial of equal protection for a state to extend the term of imprisonment of a convicted defendant beyond the statutory maximum provided because he was unable to pay the fine that was also levied upon conviction. And Tate v. Short2154 held that, in situations in which no term of confinement is prescribed for an offense but only a fine, the court may not jail persons who cannot pay the fine, unless it is impossible to develop an alternative, such as installment payments or fines scaled to ability to pay. Willful refusal to pay may, however, be punished by confinement.

Voting and Ballot Access.—Treatment of indigency in a civil type of “fundamental interest” analysis came in Harper v. Virginia Bd. of Elections,2155 in which it was held that “a State violates the Equal Protection Clause . . . whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” The Court emphasized both the fundamental interest in the right to vote and the suspect character of wealth classifications. “[W]e must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race . . . are traditionally disfavored.”2156

The two factors—classification in effect along wealth lines and adverse effect upon the exercise of the franchise—were tied together in Bullock v. Carter2157 in which the setting of high filing fees for certain offices was struck down under a standard that was stricter than the traditional equal protection standard but apparently less strict than the compelling state interest standard. The Court held that the high filing fees were not rationally related to the state’s interest in allowing only serious candidates on the ballot because some serious candidates could not pay the fees whereas some frivolous candidates could and that the state could not finance the costs of holding the elections from the fees when the voters were thereby deprived of their opportunity to vote for candidates of their preferences.

Extending Bullock, the Court held it impermissible for a state to deny indigents, and presumably other persons unable to pay filing fees, a place on the ballot for failure to pay filing fees, however reasonable in the abstract the fees may be. A state must provide such persons a reasonable alternative for getting on the ballot.2158 Similarly, a sentencing court in revoking probation must consider alternatives to incarceration if the reason for revocation is the inability of the indigent to pay a fine or restitution.2159

In Crawford v. Marion County Election Board,2160 however, a Court plurality held that a state may require citizens to present a government-issued photo identification in order to vote. Although Justice Stevens’ plurality opinion acknowledged “the burden imposed on voters who cannot afford . . . a birth certificate” (but added that it was “not possible to quantify . . . the magnitude of the burden on this narrow class of voters”), it noted that the state had not “required voters to pay a tax or a fee to obtain a new photo identification,” and that “the photo-identification cards issued by Indiana’s BMV are also free.”2161 Justice Stevens also noted that a burden on voting rights, “[h]owever slight . . . must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation,’”2162 and he found three state interests that were sufficiently weighty: election modernization (i. e., complying with federal statutes that require or permit the use of state motor vehicle driver’s license applications to serve various purposes connected with voter registration), deterring and detecting voter fraud, and safeguarding voter confidence. Justice Stevens’ opinion, therefore, rejected a facial challenge to the statute,2163 finding that, even though it was “fair to infer that partisan considerations may have played a significant role in the decision to enact” the statute, the statute was “supported by valid neutral justifications.”2164 Justice Scalia, in his concurring opinion, would not only have upheld the statute on its face, but would have ruled out as-applied challenges as well, on the ground that “[t]he Indiana photo-identification law is a generally applicable, nondiscriminatory voting regulation,” and, “without proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional.”2165 Justice Souter, in his dissenting opinion, found the statute unconstitutional because “a State may not burden the right to vote merely by invoking abstract interests, be they legitimate or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. . . . The Indiana Voter ID Law is thus unconstitutional: the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes an unreasonable and irrelevant burden on voters who are poor and old.”2166

Access to Courts.—In Boddie v. Connecticut,2167 Justice Harlan carried a majority of the Court with him in using a due process analysis to evaluate the constitutionality of a state’s filing fees in divorce actions that a group of welfare assistance recipients attacked as preventing them from obtaining divorces. The Court found that, when the state monopolized the avenues to a pacific settlement of a dispute over a fundamental matter such as marriage— only the state could terminate the marital status—then it denied due process by inflexibly imposing fees that kept some persons from using that avenue. Justice Harlan’s opinion averred that a facially neutral law or policy that did in fact deprive an individual of a protected right would be held invalid even though as a general proposition its enforcement served a legitimate governmental interest. The opinion concluded with a cautioning observation that the case was not to be taken as establishing a general right to access to the courts.

The Boddie opinion left unsettled whether a litigant’s interest in judicial access to effect a pacific settlement of some dispute was an interest entitled to some measure of constitutional protection as a value of independent worth or whether a litigant must be seeking to resolve a matter involving a fundamental interest in the only forum in which any resolution was possible. Subsequent decisions established that the latter answer was the choice of the Court. In United States v. Kras,2168 the Court held that the imposition of filing fees that blocked the access of an indigent to a discharge of his debts in bankruptcy denied the indigent neither due process nor equal protection. The marital relationship in Boddie was a fundamental interest, the Court said, and upon its dissolution depended associational interests of great importance; however, an interest in the elimination of the burden of debt and in obtaining a new start in life, while important, did not rise to the same constitutional level as marriage. Moreover, a debtor’s access to relief in bankruptcy had not been monopolized by the government to the same degree as dissolution of a marriage; one may, “in theory, and often in actuality,” manage to resolve the issue of his debts by some other means, such as negotiation. While the alternatives in many cases, such as Kras, seem barely likely of successful pursuit, the Court seemed to be suggesting that absolute preclusion was a necessary element before a right of access could be considered.2169

Subsequently, on the initial appeal papers and without hearing oral argument, the Court summarily upheld the application to indigents of filing fees that in effect precluded them from appealing decisions of a state administrative agency reducing or terminating public assistance.2170

The continuing vitality of Griffin v. Illinois, however, is seen in M. L. B. v. S. L. J.,2171 where the Court considered whether a state seeking to terminate the parental rights of an indigent must pay for the preparation of the transcript required for pursuing an appeal. Unlike in Boddie, the state, Mississippi, had afforded the plaintiff a trial on the merits, and thus the “monopolization” of the avenues of relief alleged in Boddie was not at issue. As in Boddie, however, the Court focused on the substantive due process implications of the state’s limiting “[c]hoices about marriage, family life, and the upbringing of children,”2172 while also referencing cases establishing a right of equal access to criminal appellate review. Noting that even a petty offender had a right to have the state pay for the transcript needed for an effective appeal,2173 and that the forced dissolution of parental rights was “more substantial than mere loss of money,”2174 the Court ordered Mississippi to provide the plaintiff the court records necessary to pursue her appeal.

Educational Opportunity.—Making even clearer its approach in de facto wealth classification cases, the Court in San Antonio School District v. Rodriguez2175 rebuffed an intensive effort with widespread support in lower court decisions to invalidate the system prevalent in 49 of the 50 states of financing schools primarily out of property taxes, with the consequent effect that the funds available to local school boards within each state were widely divergent. Plaintiffs had sought to bring their case within the strict scrutiny—compelling state interest doctrine of equal protection review by claiming that under the tax system there resulted a de facto wealth classification that was “suspect” or that education was a “fundamental” right and the disparity in educational financing could not therefore be justified. The Court held, however, that there was neither a suspect classification nor a fundamental interest involved, that the system must be judged by the traditional restrained standard, and that the system was rationally related to the state’s interest in protecting and promoting local control of education.2176

Important as the result of the case is, the doctrinal implications are far more important. The attempted denomination of wealth as a suspect classification failed on two levels. First, the Court noted that plaintiffs had not identified the “class of disadvantaged ‘poor’” in such a manner as to further their argument. That is, the Court found that the existence of a class of poor persons, however defined, did not correlate with property-tax-poor districts; neither as an absolute nor as a relative consideration did it appear that tax-poor districts contained greater numbers of poor persons than did property-rich districts, except in random instances. Second, the Court held, there must be an absolute deprivation of some right or interest rather than merely a relative one before the deprivation because of inability to pay will bring into play strict scrutiny. “The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.”2177 No such class had been identified here and more importantly no one was being absolutely denied an education; the argument was that it was a lower quality education than that available in other districts. Even assuming that to be the case, however, it did not create a suspect classification.

Education is an important value in our society, the Court agreed, being essential to the effective exercise of freedom of expression and intelligent utilization of the right to vote. But a right to education is not expressly protected by the Constitution, continued the Court, nor should it be implied simply because of its undoubted importance. The quality of education increases the effectiveness of speech or the ability to make informed electoral choice but the judiciary is unable to determine what level of quality would be sufficient. Moreover, the system under attack did not deny educational opportunity to any child, whatever the result in that case might be; it was attacked for providing relative differences in spending and those differences could not be correlated with differences in educational quality.2178

Rodriguez clearly promised judicial restraint in evaluating challenges to the provision of governmental benefits when the effect is relatively different because of the wealth of some of the recipients or potential recipients and when the results, what is obtained, vary in relative degrees. Wealth or indigency is not a per se suspect classification but it must be related to some interest that is fundamental, and Rodriguez doctrinally imposed a considerable barrier to the discovery or creation of additional fundamental interests. As the decisions reviewed earlier with respect to marriage and the family reveal, that barrier has not held entirely firm, but within a range of interests, such as education,2179 the case remains strongly viable. subject v. Dickinson Public Schools2180 rejected an indigent student’s equal protection challenge to a state statute permitting school districts to charge a fee for school bus service, in the process rejecting arguments that either “strict” or “heightened” scrutiny is appropriate. Moreover, the Court concluded, there is no constitutional obligation to provide bus transportation, or to provide it for free if it is provided at all.2181

Abortion.Rodriguez furnished the principal analytical basis for the Court’s subsequent decision in Maher v. Roe,2182 holding that a state’s refusal to provide public assistance for abortions that were not medically necessary under a program that subsidized all medical expenses otherwise associated with pregnancy and childbirth did not deny to indigent pregnant women equal protection of the laws. As in Rodriguez, the Court held that the indigent are not a suspect class.2183 Again, as in Rodriguez and in Kras, the Court held that, when the state has not monopolized the avenues for relief and the burden is only relative rather than absolute, a governmental failure to offer assistance, while funding alternative actions, is not undue governmental interference with a fundamental right.2184 Expansion of this area of the law of equal protection seems especially limited.

1854 Graham v. Richardson, 403 U.S. 365, 371 (1971). See also Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420 (1948); Truax v. Raich, 239 U.S. 33, 39 (1915); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Aliens in the United States, including those whose presence is not authorized by the federal government, are “persons” to whom the Fifth and Fourteenth Amendments apply. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”); Plyler v. Doe, 457 U.S. 202, 210–16 (1982). However, the power to regulate immigration has permitted the federal government to discriminate on the basis of alienage, at least so long as the discrimination satisfies the rational basis standard of review. See Mathews v. Diaz, 426 U.S. 67, 79–80, 83 (1976) (holding that federal conditions upon alien eligibility for public assistance were not “wholly irrational,” and observing that “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens . . . The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is ‘invidious.’”). Nonetheless, with regard to statutes that touch upon immigration-related matters but do not address the entry or exclusion of aliens, the Court has suggested that if such a law discriminates on the basis of suspect factors other than alienage or national origin a more “exacting standard of review” may be required. See Sessions v. Morales-Santana, 582 U.S. ___, No. 15–1191, slip op. 14–17 (2017) (distinguishing between immigration and citizenship contexts and applying heightened scrutiny to hold that a derivative citizenship statute which discriminated by gender violated equal protection principles).

1855 Yick Wo v. Hopkins, 118 U.S. 356 (1886).

1856 McGready v. Virginia, 94 U.S. 391 (1877); Patsone v. Pennsylvania, 232 U.S. 138 (1914) (limiting aliens’ rights to develop natural resources); Hauenstein v. Lynham, 100 U.S. 483 (1880); Blythe v. Hinckley, 180 U.S. 333 (1901) (restriction of devolution of property to aliens); Terrace v. Thompson, 263 U.S. 197 (1923); Porterfield v. Webb, 263 U.S. 225 (1923); Webb v. O’Brien, 263 U.S. 313 (1923); Frick v. Webb, 263 U.S. 326 (1923) (denial of right to own and acquire land); Heim v. McCall, 239 U.S. 175 (1915); People v. Crane, 214 N.Y. 154, 108 N.E. 427, aff’d, 239 U.S. 195 (1915) (barring public employment to aliens); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927) (prohibiting aliens from operating poolrooms). The Court struck down a statute restricting the employment of aliens by private employers, however. Truax v. Raich, 239 U.S. 33 (1915).

1857 320 U.S. 81, 100 (1943).

1858 323 U.S. 214, 216 (1944).

1859 Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948).

1860 334 U.S. at 420. The decision was preceded by Oyama v. California, 332 U.S. 633 (1948), which was also susceptible of being read as questioning the premise of the earlier cases.

1861 Graham v. Richardson, 403 U.S. 365, 372 (1971).

1862 413 U.S. 634 (1973).

1863 413 U.S. at 647–49. See also Foley v. Connelie, 435 U.S. 291, 296 (1978). Aliens can be excluded from voting, Skatfe v. Rorex, 553 P.2d 830 (Colo. 1976), appeal dismissed for lack of substantial federal question, 430 U.S. 961 (1977), and can be excluded from service on juries. Perkins v. Smith, 370 F. Supp. 134 (D. Md. 1974) (3-judge court), aff’d, 426 U.S. 913 (1976).

1864 Sugarman v. Dougall, 413 U.S. 634, 647 (1973). Such state restrictions are “not wholly immune from scrutiny under the Equal Protection Clause.” Id. at 648.

1865 Justice Rehnquist dissented. 413 U.S. at 649. In the course of the opinion, the Court held inapplicable the doctrine of “special public interest,” the idea that a State’s concern with the restriction of the resources of the State to the advancement and profit of its citizens is a valid basis for discrimination against out-of-state citizens and aliens generally, but it did not declare the doctrine invalid. Id. at 643–45. The “political function” exception is inapplicable to notaries public, who do not perform functions going to the heart of representative government. Bernal v. Fainter, 467 U.S. 216 (1984).

1866 In re Griffiths, 413 U.S. 717 (1973). Chief Justice Burger and Justice Rehnquist dissented. Id. at 730, and 649 (Sugarman dissent also applicable to Griffiths).

1867 Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976). Because the jurisdiction was Puerto Rico, the Court was not sure whether the requirement should be governed by the Fifth or Fourteenth Amendment but deemed the question immaterial, as the same result would be achieved in either case. The quoted expression is from Truax v. Raich, 239 U.S. 33, 41 (1915).

1868 432 U.S. 1 (1977).

1869 432 U.S. at 9. Chief Justice Burger and Justices Powell, Rehnquist, and Stewart dissented. Id. at 12, 15, 17. Justice Rehnquist’s dissent argued that the nature of the disqualification precluded it from being considered suspect.

1870 Foley v. Connelie, 435 U.S. 291, 295 (1978). The opinion was by Chief Justice Burger and the quoted phrase was from his dissent in Nyquist v. Mauclet, 432 U.S. 1, 14 (1977). Justices Marshall, Stevens, and Brennan dissented. Id. at 302, 307.

1871 435 U.S. at 295–96. Formally following Sugarman v. Dougall, supra, the opinion considerably enlarged the exception noted in that case; see also Nyquist v. Mauclet, 432 U.S. 1, 11 (1977) (emphasizing the “narrowness of the exception”). Concurring in Foley, 435 U.S. at 300, Justice Stewart observed that “it is difficult if not impossible to reconcile the Court’s judgment in this case with the full sweep of the reasoning and authority of some of our past decisions. It is only because I have become increasingly doubtful about the validity of those decisions (in at least some of which I concurred) that I join the opinion of the Court in this case.” On the other hand, Justice Blackmun, who had written several of the past decisions, including Mauclet, concurred also, finding the case consistent. Id.

1872 35 U.S. at 296, 297, 298. In Elrod v. Burns, 427 U.S. 347 (1976), barring patronage dismissals of police officers, the Court had nonetheless recognized an exception for policymaking officers which it did not extend to the police.

1873 411 U.S. 68 (1979). The opinion, by Justice Powell, was joined by Chief Justice Burger and Justices Stewart, White, and Rehnquist. Dissenting were Justices Blackmun, Brennan, Marshall, and Stevens. The disqualification standard was of course, that held invalid as a disqualification for receipt of educational assistance in Nyquist v. Mauclet, 432 U.S. 1 (1977).

1874 Ambach v. Norwick, 441 U.S. 68, 75 (1979).

1875 441 U.S. at 75.

1876 441 U.S. at 75–80. The quotation, id. at 76, is from Sugarman v. Dougall, 413 U.S. 634, 647 (1973).

1877 454 U.S. 432 (1982).

1878 454 U.S. at 442.

1879 454 U.S. at 445.

1880 454 U.S. at 438–39.

1881 Thus, the statute in Chavez-Salido applied to such positions as toll-service employees, cemetery sextons, fish and game wardens, and furniture and bedding inspectors, and yet the overall classification was deemed not so ill-fitting as to require its voiding.

1882 Plyler v. Doe, 457 U.S. 432 (1982). Joining the opinion of the Court were Justices Brennan, Marshall, Blackmun, Powell, and Stevens. Dissenting were Chief Justice Burger and Justices White, Rehnquist, and O’Connor. Id. at 242.

1883 In San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973), while holding that education is not a fundamental interest, the Court expressly reserved the question whether a total denial of education to a class of children would infringe upon a fundamental interest. Id. at 18, 25 n.60, 37. The Plyler Court’s emphasis upon the total denial of education and the generally suspect nature of alienage classifications left ambiguous whether the state discrimination would have been subjected to strict scrutiny if it had survived intermediate scrutiny. Justice Powell thought the Court had rejected strict scrutiny, 457 U.S. at 238 n.2 (concurring), while Justice Blackmun thought it had not reached the question, id. at 235 n.3 (concurring). Indeed, their concurring opinions seem directed more toward the disability visited upon innocent children than the broader complex of factors set out in the opinion of the Court. Id. at 231, 236.

1884 457 U.S. at 223–24.

1885 Rejected state interests included preserving limited resources for its lawful residents, deterring an influx of illegal aliens, avoiding the special burden caused by these children, and serving children who were more likely to remain in the state and contribute to its welfare. 457 U.S. at 227–30.

1886 Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873). The cases involving alleged discrimination against women contain large numbers of quaint quotations from unlikely sources. Upholding a law which imposed a fee upon all persons engaged in the laundry business, but excepting businesses employing not more than two women, Justice Holmes said: “If Montana deems it advisable to put a lighter burden upon women than upon men with regard to an employment that our people commonly regard as more appropriate for the former, the Fourteenth Amendment does not interfere by creating a fictitious equality where there is a real difference.” Quong Wing v. Kirkendall, 223 U.S. 59, 63 (1912). And upholding a law prohibiting most women from tending bar, Justice Frankfurter said: “The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic. . . . The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.” Goesaert v. Cleary, 335 U.S. 464, 466 (1948).

1887 Minor v. Happersett, 88 U.S. (21 Wall) 162 (1875) (privileges and immunities).

1888 Muller v. Oregon, 208 U.S. 412 (1908); Dominion Hotel v. Arizona, 249 U.S. 265 (1919).

1889 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

1890 E.g., Radice v. New York, 264 U.S. 292 (1924) (prohibiting night work by women in restaurants). A similar restriction set a maximum weight that women could be required to lift.

1891 Hoyt v. Florida, 368 U.S. 57, 62 (1961).

1892 Cronin v. Adams, 192 U.S. 108 (1904).

1893 Goesaert v. Cleary, 335 U.S. 464 (1948).

1894 Thus, title VII of the Civil Rights Act of 1964, 80 Stat. 662, 42 U.S.C. §§ 2000e et seq., bans discrimination against either sex in employment. See, e.g., Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971); Dothard v. Rawlinson, 433 U.S. 321 (1977); Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978); Arizona Governing Comm. for Tax Deferred Plans v. Norris, 463 U.S. 1073 (1983) (actuarially based lower monthly retirement benefits for women employees violates Title VII); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (“hostile environment” sex harassment claim is actionable). Reversing rulings that pregnancy discrimination is not reached by the statutory bar on sex discrimination, General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), Congress enacted the Pregnancy Discrimination Act, Pub. L. 95–555 (1978), 92 Stat. 2076, amending 42 U.S.C. § 2000e. The Equal Pay Act, 77 Stat. 56 (1963), amending the Fair Labor Standards Act, 29 U.S.C. § 206(d), generally applies to wages paid for work requiring “equal skill, effort, and responsibility.” See Corning Glass Works v. Brennan, 417 U.S. 188 (1974). On the controversial issue of “comparable worth” and the interrelationship of title VII and the Equal Pay Act, see County of Washington v. Gunther, 452 U.S. 161 (1981).

1895 See, e.g., Roberts v. United States Jaycees, 468 U.S. 609 (1984) (state prohibition on gender discrimination in aspects of public accommodation, as applied to membership in a civic organization, is justified by compelling state interest).

1896 On the Equal Rights Amendment, see discussion of “Ratification,” supra.

1897 404 U.S. 71 (1971).

1898 404 U.S. at 75–77. Cf. Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972). A statute similar to that in Reed was before the Court in Kirchberg v. Feenstra, 450 U.S. 455 (1981) (invalidating statute giving husband unilateral right to dispose of jointly owned community property without wife’s consent).

1899 Craig v. Boren, 429 U.S. 190, 197 (1976); Califano v. Goldfarb, 430 U.S. 199, 210–11 (1977) (plurality opinion); Califano v. Webster, 430 U.S. 313, 316–317 (1977); Orr v. Orr, 440 U.S. 268, 279 (1979); Caban v. Mohammed, 441 U.S. 380, 388 (1979); Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 273 (1979); Califano v. Westcott, 443 U.S. 76, 85 (1979); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723–24 (1982). But see Michael M. v. Superior Court, 450 U.S. 464, 468–69 (1981) (plurality opinion); id. at 483 (Justice Blackmun concurring); Rostker v. Goldberg, 453 U.S. 57, 69–72 (1981). The test is the same whether women or men are disadvantaged by the classification, Orr v. Orr, 440 U.S. at 279; Caban v. Mohammed, 441 U.S. at 394; Mississippi Univ. for Women v. Hogan, 458 U.S. at 724, although Justice Rehnquist and Chief Justice Burger strongly argued that when males are disadvantaged only the rational basis test is appropriate. Craig v. Boren, 429 U.S. at 217, 218–21; Califano v. Goldfarb, 430 U.S. at 224. That adoption of a standard has not eliminated difficulty in deciding such cases should be evident by perusal of the cases following.

1900 In Frontiero v. Richardson, 411 U.S. 677 (1973), four Justices were prepared to hold that sex classifications are inherently suspect and must therefore be subjected to strict scrutiny. Id. at 684–87 (Justices Brennan, Douglas, White, and Marshall). Three Justices, reaching the same result, thought the statute failed the traditional test and declined for the moment to consider whether sex was a suspect classification, finding that inappropriate while the Equal Rights Amendment was pending. Id. at 691 (Justices Powell and Blackmun and Chief Justice Burger). Justice Stewart found the statute void under traditional scrutiny and Justice Rehnquist dissented. Id. at 691. In Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982), Justice O’Connor for the Court expressly reserved decision whether a classification that survived intermediate scrutiny would be subject to strict scrutiny.

1901 Although their concurrences in Craig v. Boren, 429 U.S. 190, 210, 211 (1976), indicate some reticence about express reliance on intermediate scrutiny, Justices Powell and Stevens have since joined or written opinions stating the test and applying it. E.g., Caban v. Mohammed, 441 U.S. 380, 388 (1979) (Justice Powell writing the opinion of the Court); Parham v. Hughes, 441 U.S. 347, 359 (1979) (Justice Powell concurring); Califano v. Goldfarb, 430 U.S. 199, 217 (1977) (Justice Stevens concurring); Caban v. Mohammed, 441 U.S. at 401 (Justice Stevens dissenting). Chief Justice Burger and Justice Rehnquist have not clearly stated a test, although their deference to legislative judgment approaches the traditional scrutiny test. But see Califano v. Westcott, 443 U.S. at 93 (joining Court on substantive decision). And cf. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 734–35 (1982) (Justice Blackmun dissenting).

1902 The test is thus the same as is applied to illegitimacy classifications, although with apparently more rigor when sex is involved.

1903 Stanton v. Stanton, 421 U.S. 7 (1975). See also Stanton v. Stanton, 429 U.S. 501 (1977). Assumptions about the traditional roles of the sexes afford no basis for support of classifications under the intermediate scrutiny standard. E.g., Orr v. Orr, 440 U.S. 268, 279–80 (1979); Parham v. Hughes, 441 U.S. 347, 355 (1979); Kirchberg v. Feenstra, 450 U.S. 455 (1981). Justice Stevens in particular has been concerned whether legislative classifications by sex simply reflect traditional ways of thinking or are the result of a reasoned attempt to reach some neutral goal, e.g., Califano v. Goldfarb, 430 U.S. 199, 222–23 (1978) (concurring), and he will sustain some otherwise impermissible distinctions if he finds the legislative reasoning to approximate the latter approach. Caban v. Mohammed, 441 U.S. 380, 401 (1979) (dissenting).

1904 Taylor v. Louisiana, 419 U.S. 522 (1975). The precise basis of the decision was the Sixth Amendment right to a representative cross section of the community, but the Court dealt with and disapproved the reasoning in Hoyt v. Florida, 368 U.S. 57 (1961), in which a similar jury selection process was upheld against due process and equal protection challenge.

1905 511 U.S. 127 (1994).

1906 Craig v. Boren, 429 U.S. 190 (1976).

1907 429 U.S. at 198, 199–200, 201–04.

1908 440 U.S. 268, 281 (1979).

1909 440 U.S. at 281–83. An administrative convenience justification was not available, therefore. Id. at 281 & n.12. Although such an argument has been accepted as a sufficient justification in at least some illegitimacy cases, Mathews v. Lucas, 427 U.S. 495, 509 (1976), it has neither wholly been ruled out nor accepted in sex cases. In Lucas, 427 U.S. at 509–10, the Court interpreted Frontiero v. Richardson, 411 U.S. 677 (1973), as having required a showing at least that for every dollar lost to a recipient not meeting the general purpose qualification a dollar is saved in administrative expense. In Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 152 (1980), the Court said that “[i]t may be that there are levels of administrative convenience that will justify discriminations that are subject to heightened scrutiny . . . , but the requisite showing has not been made here by the mere claim that it would be inconvenient to individualize determinations about widows as well as widowers.” Justice Stevens apparently would demand a factual showing of substantial savings. Califano v. Goldfarb, 430 U.S. 199, 219 (1977) (concurring).

1910 Caban v. Mohammed, 441 U.S. 380 (1979). Four Justices dissented. Id. at 394 (Justice Stewart), 401 (Justices Stevens and Rehnquist and Chief Justice Burger). For the conceptually different problem of classification between different groups of women on the basis of marriage or absence of marriage to a wage earner, see Califano v. Boles, 443 U.S. 282 (1979).

1911 Parham v. Hughes, 441 U.S. 347, 361 (1979). There was no opinion of the Court, but both opinions making up the result emphasized that the objective of the state—to avoid difficulties in proving paternity—was an important one and was advanced by the classification. The plurality opinion determined that the statute did not invidiously discriminate against men as a class; it was no overbroad generalization but proceeded from the fact that only men could legitimate children by unilateral action. The sexes were not similarly situated, therefore, and the classification recognized that. As a result, all that was required was that the means be a rational way of dealing with the problem of proving paternity. Id. at 353–58. Justice Powell found the statute valid because the sex-based classification was substantially related to the objective of avoiding problems of proof in proving paternity. He also emphasized that the father had it within his power to remove the bar by legitimating the child. Id. at 359. Justices White, Brennan, Marshall, and Blackmun, who had been in the majority in Caban, dissented.

1912 Nguyen v. INS, 533 U.S. 53 (2001).See also Miller v. Albright, 523 U.S. 420, 424 (1998) (opinion of Stevens, J.) (concluding that a requirement in a citizenship statute that children born abroad and out of wedlock to citizen fathers, but not to citizen mothers, obtain formal proof of paternity by age 18 does not violate the equal protection component of the Fifth Amendment’s Due Process Clause). Importantly, subject in ruling that a derivative citizenship statute for children born abroad and out of wedlock to a U.S. citizen and foreign national violated equal protection principles because the statute imposed lengthier physical presence requirements on citizen fathers than citizen mothers. See 582 U.S. ___, No. 15–1191, slip op. 15–16 (2017). Specifically, the Morales-Santana Court held that unlike the statute at issue in Nguyen and Miller, the physical presence requirement being challenged in Morales-Santana did nothing to demonstrate the parent’s tie to the child and was not a “minimal” burden on the citizen parent. Id. at 16. The Morales-Santana Court also concluded that, while the Court in Fiallo v. Bell, 430 U.S. 787 (1977), had applied a very deferential standard when reviewing gender-based distinctions in the context of alien admission preferences, a “more exacting standard of review” was appropriate when assessing the permissibility of such distinctions in the application of derivative citizenship statutes. Id. at 14–17 (describing the Fiallo Court’s ruling as being supported by the “extremely broad power to admit or exclude aliens” and concluding that heightened scrutiny was appropriate in the review of gender-based distinctions made by a derivative citizenship statute, which did not touch upon the “entry preference for aliens” governed by Fiallo).

1913 Frontiero v. Richardson, 411 U.S. 677 (1973).

1914 420 U.S. 636 (1975).

1915 430 U.S. 199 (1977). The dissent argued that whatever the classification used, social insurance programs should not automatically be subjected to heightened scrutiny but rather only to traditional rationality review. Id. at 224 (Justice Rehnquist with Chief Justice Burger and Justices Stewart and Blackmun). In Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142 (1980), voiding a state workers’ compensation provision identical to that voided in Goldfarb, only Justice Rehnquist continued to adhere to this view, although the others may have yielded only to precedent.

1916 430 U.S. at 204–09, 212–17 (Justices Brennan, White, Marshall, and Powell). Congress responded by eliminating the dependency requirement but by adding a pension offset provision reducing spousal benefits by the amount of various other pensions received. Continuation in this context of the Goldfarb gender-based dependency classification for a five-year “grace period” was upheld in Heckler v. Mathews, 465 U.S. 728 (1984), as directly and substantially related to the important governmental interest in protecting against the effects of the pension offset the retirement plans of individuals who had based their plans on unreduced pre-Goldfarb payment levels.

1917 430 U.S. at 217. Justice Stevens adhered to this view in Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 154 (1980). Note the unanimity of the Court on the substantive issue, although it was divided on remedy, in voiding in Califano v. Westcott, 443 U.S. 76 (1979), a Social Security provision giving benefits to families with dependent children who have been deprived of parental support because of the unemployment of the father but giving no benefits when the mother is unemployed.

1918 453 U.S. 57 (1981). Joining the opinion of the Court were Justices Rehnquist, Stewart, Blackmun, Powell, and Stevens, and Chief Justice Burger. Dissenting were Justices White, Marshall, and Brennan. Id. at 83, 86.

1919 453 U.S. at 69–72, 78–83. The dissent argued that registered persons would fill noncombat positions as well as combat ones and that drafting women would add to women volunteers providing support for combat personnel and would free up men in other positions for combat duty. Both dissents assumed without deciding that exclusion of women from combat served important governmental interests. Id. at 83, 93. The majority’s reliance on an administrative convenience argument, it should be noted, id. at 81, was contrary to recent precedent. See discussion of Orr v. Orr,supra.

1920 450 U.S. 464 (1981). Joining the opinion of the Court were Justices Rehnquist, Stewart, and Powell, and Chief Justice Burger, constituting only a plurality. Justice Blackmun concurred in a somewhat more limited opinion. Id. at 481. Dissenting were Justices Brennan, White, Marshall, and Stevens. Id. at 488, 496.

1921 450 U.S. at 470–74, 481. The dissents questioned both whether the pregnancy deterrence rationale was the purpose underlying the distinction and whether, if it was, the classification was substantially related to achievement of the goal. Id. at 488, 496.

1922 416 U.S. 351 (1974).

1923 416 U.S. at 355.

1924 419 U.S. 498 (1975).

1925 Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975); Califano v. Goldfarb, 430 U.S. 199, 209 n.8 (1977); Orr v. Orr, 440 U.S. 268, 280–82 (1979); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150–52 (1980). In light of the stiffened standard, Justice Stevens has called for overruling Kahn, Califano v. Goldfarb, 430 U.S. at 223–24, but Justice Blackmun would preserve that case. Orr v. Orr, 440 U.S. at 284. Cf. Regents of the Univ. of California v. Bakke, 438 U.S. 265, 302–03 (1978) (Justice Powell; less stringent standard of review for benign sex classifications).

1926 Califano v. Webster, 430 U.S. 313, 316–18, 320 (1977). There was no doubt that the provision sustained in Webster had been adopted expressly to relieve past societal discrimination. The four Goldfarb dissenters concurred specially, finding no difference between the two provisions. Id. at 321.

1927 458 U.S. 718 (1982).

1928 458 U.S. at 728.

1929 458 U.S. at 730. In addition to obligating the state to show that in fact there was existing discrimination or effects from past discrimination, the Court also appeared to take the substantial step of requiring the state “to establish that the legislature intended the single-sex policy to compensate for any perceived discrimination.” Id. at 730 n.16. A requirement that the proffered purpose be the actual one and that it must be shown that the legislature actually had that purpose in mind would be a notable stiffening of equal protection standards.

1930 In the major dissent, Justice Powell argued that only a rational basis standard ought to be applied to sex classifications that would “ expand women’s choices,” but that the exclusion here satisfied intermediate review because it promoted diversity of educational opportunity and was premised on the belief that single-sex colleges offer “distinctive benefits” to society. Id. at 735, 740 (emphasis by Justice), 743. The Court noted that, because the state maintained no other single-sex public university or college, the case did not present “the question of whether States can provide ‘separate but equal’ undergraduate institutions for males and females,” id. at 720 n.1, although Justice Powell thought the decision did preclude such institutions. Id. at 742–44. See Vorchheimer v. School Dist. of Philadelphia, 532 F. 2d 880 (3d Cir. 1976) (finding no equal protection violation in maintenance of two single-sex high schools of equal educational offerings, one for males, one for females), aff’d by an equally divided Court, 430 U.S. 703 (1977) (Justice Rehnquist not participating).

1931 United States v. Virginia, 518 U.S. 515 (1996).

1932 See Sessions v. Morales-Santana, 582 U.S. ___, No. 15–1191, slip op. at 2 (2017) (holding that “the gender line Congress drew is incompatible with the requirement that the Government accord to all persons ‘the equal protection of the laws.’”).

1933 Id. at 2–3 (describing 8 U.S.C. §§ 1401 & 1409 (1958 ed.)).

1934 Id. at 9 (citing Obergefell v. Hodges, 576 U.S. ___, No. 14–556, slip op. at 20 (2015)) (emphasis in original).

1935 Id. at 10.

1936 Id. at 13.

1937 Id. at 14. In so holding, the Morales-Santana Court rejected the government’s argument that the challenged law’s gender distinction helped ensure that the child born abroad and out of wedlock to a U.S. citizen and foreign national would have a strong connection with the United States. Id. at 17. The government’s argued that an unwed alien mother, on account of being the only legally recognized parent, would have a “competing national influence” upon the child that warranted the requirement that the U.S. father have a longer physical connection with the United States. Id. The Court concluded that the argument was based on the assumption that an alien father of a nonmarital child would not accept parental responsibility, a “[l]ump characterization” about gender roles that did not pass equal protection inspection. Id. at 18. Moreover, even assuming that an interest in ensuring a connection to the United States could support the law, the Court held that the law’s gender-based means could not serve the desired end because the law allowed for an individual with no ties whatsoever to the United States to become a citizen if his U.S. citizen mother lived in the country for a year prior to his birth. Id. at 18–19. The Court also rejected the government’s argument that Congress wished to reduce the risk of “statelessness” for the foreign-born child of a U.S. citizen mother; an argument premised on the belief that countries are more likely to grant citizenship to the child of a citizen mother than to the child of a citizen father. Id. at 19. The Court noted there was little evidence that a statelessness concern prompted the physical presence requirements, id. at 19–20, and the Court also was skeptical that the risk of statelessness in actuality disproportionately endangered the children of unwed U.S. citizen mothers. Id. at 21–23.

1938 See Morales-Santana v. Lynch, 804 F.3d 521, 535 (2d Cir. 2015).

1939 See Morales-Santana, slip op. at 25 (quoting Califano v. Westcott, 443 U.S. 76, 89 (1979)).

1940 Id. at 2–4, 26.

1941 Id. at 26 (“For if [the] one-year dispensation were extended to unwed citizen fathers, would it not be irrational to retain the longer term when the U.S. citizen parent is married?”).

1942 Id. at 27 (internal citations and quotations omitted).

1943 414 U.S. 632 (1974). Justice Powell concurred on equal protection grounds. Id. at 651. See also Turner v. Department of Employment Security, 423 U.S. 44 (1975).

1944 Geduldig v. Aiello, 417 U.S. 484 (1974). The Court denied that the classification was based upon “gender as such.” Classification was on the basis of pregnancy, and while only women can become pregnant, that fact alone was not determinative. “The program divides potential recipients into two groups—pregnant woman and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.” Id. at 496 n.20. For a rejection of a similar attempted distinction, see Nyquist v. Mauclet, 432 U.S. 1, 9 (1977); and Trimble v. Gordon, 430 U.S. 762, 774 (1977). See also Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971). The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), now extends protection to pregnant women.

1945 The first cases set the stage for the lack of consistency. Compare Levy v. Louisiana, 391 U.S. 68 (1968), and Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73 (1968), invalidating laws that precluded wrongful death actions in cases involving the child or the mother when the child was illegitimate, in which scrutiny was strict, with Labine v. Vincent, 401 U.S. 532 (1971), involving intestate succession, in which scrutiny was rational basis, and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), involving a workers’ compensation statute distinguishing between legitimates and illegitimates, in which scrutiny was intermediate.

1946 Mathews v. Lucas, 427 U.S. 495, 503–06 (1976); Trimble v. Gordon, 430 U.S. 762, 766–67 (1977); Lalli v. Lalli, 439 U.S. 259, 265 (1978). Scrutiny in previous cases had ranged from negligible, Labine v. Vincent, 401 U.S. 532 (1971), to something approaching strictness, Jiminez v. Weinberger, 417 U.S. 628, 631–632 (1974). Mathews itself illustrates the uncertainty of statement, suggesting at one point that the Labine standard may be appropriate, 401 U.S. at 506, and at another that the standard appropriate to sex classifications is to be used, id. at 510, while observing a few pages earlier that illegitimacy is entitled to less exacting scrutiny than either race or sex. Id. at 506. Trimble settles on intermediate scrutiny but does not assess the relationship between its standard and the sex classification standard. See Parham v. Hughes, 441 U.S. 347 (1979), and Caban v. Mohammed, 441 U.S. 380 (1979) (both cases involving classifications reflecting both sex and illegitimacy interests).

1947 The major inconsistency arises from three 5-to-4 decisions. Labine v. Vincent, 401 U.S. 532 (1971), was largely overruled by Trimble v. Gordon, 430 U.S. 762 (1977), which itself was substantially limited by Lalli v. Lalli, 439 U.S. 259 (1978). Justice Powell was the swing vote for different disposition of the latter two cases. Thus, while four Justices argued for stricter scrutiny and usually invalidation of such classifications, Lalli v. Lalli, 439 U.S. at 277 (Justices Brennan, White, Marshall, and Stevens dissenting), and four favor relaxed scrutiny and usually sustaining the classifications, Trimble v. Gordon, 430 U.S. at 776, 777 (Chief Justice Burger and Justices Stewart, Blackmun, and Rehnquist dissenting), Justice Powell applied his own intermediate scrutiny and selectively voided and sustained. See Lalli v. Lalli, supra (plurality opinion by Justice Powell).

1948 A classification that absolutely distinguishes between legitimates and il-legitimates is not alone subject to such review; one that distinguishes among classes of illegitimates is also subject to it, Trimble v. Gordon, 430 U.S. 762, 774 (1977), as indeed are classifications based on other factors. E.g., Nyquist v. Mauclet, 432 U.S. 1, 9 (1977) (alienage).

1949 Labine v. Vincent, 401 U.S. 532 (1971). Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170 (1972), had confined the analysis of Labine to the area of state inheritance laws in expanding review of illegitimacy classifications.

1950 430 U.S. 762 (1977). Chief Justice Burger and Justices Stewart, Blackmun, and Rehnquist dissented, finding the statute “constitutionally indistinguishable” from the one sustained in Labine.Id. at 776. Justice Rehnquist also dissented separately. Id. at 777.

1951 430 U.S. at 768–70. Although this purpose had been alluded to in Labine v. Vincent, 401 U.S. 532, 538 (1971), it was rejected as a justification in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173, 175 (1972). Visiting consequences upon the parent appears to be permissible. Parham v. Hughes, 441 U.S. 347, 352–53 (1979).

1952 Trimble v. Gordon, 430 U.S. 762, 774–76 (1977). The Court cited the failure of the state court to rely on this purpose and its own examination of the statute.

1953 430 U.S. at 773–74. This justification had been prominent in Labine v. Vincent, 401 U.S. 532, 539 (1971), and its absence had been deemed critical in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170–71 (1972). The Trimble Court thought this approach “somewhat of an analytical anomaly” and disapproved it. However, the degree to which one could conform to the statute’s requirements and the reasonableness of those requirements in relation to a legitimate purpose are prominent in Justice Powell’s reasoning in subsequent cases. Lalli v. Lalli, 439 U.S. 259, 266–74 (1978); Parham v. Hughes, 441 U.S. 347, 359 (1979) (concurring). See also Nyquist v. Mauclet, 432 U.S. 1 (1977) (alienage); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723 n.8 (1982) (sex); and compare id. at 736 (Justice Powell dissenting).

1954 Trimble v. Gordon, 430 U.S. 762, 770–73 (1977). The result is in effect a balancing one, the means-ends relationship must be a substantial one in terms of the advantages of the classification as compared to the harms of the classification means. Justice Rehnquist’s dissent is especially critical of this approach. Id. at 777, 781–86. Also not interfering with orderly administration of estates is application of Trimble in a probate proceeding ongoing at the time Trimble was decided; the fact that the death had occurred prior to Trimble was irrelevant. Reed v. Campbell, 476 U.S. 852 (1986).

1955 439 U.S. 259 (1978). The four Trimble dissenters joined Justice Powell in the result, although only two joined his opinion. Justices Blackmun and Rehnquist concurred because they thought Trimble wrongly decided and ripe for overruling. Id. at 276. The four dissenters, who had joined the Trimble majority with Justice Powell, thought the two cases were indistinguishable. Id. at 277.

1956 Illustrating the difficulty are two cases in which the fathers of illegitimate children challenged statutes treating them differently than mothers of such children were treated. In Parham v. Hughes, 441 U.S. 347 (1979), the majority viewed the distinction as a gender-based one rather than as an illegitimacy classification and sustained a bar to a wrongful death action by the father of an illegitimate child who had not legitimated him; in Caban v. Mohammed, 441 U.S. 380 (1980), again viewing the distinction as a gender-based one, the majority voided a state law permitting the mother but not the father of an illegitimate child to block his adoption by refusing to consent. Both decisions were 5-to-4.

1957 Gomez v. Perez, 409 U.S. 535, 538 (1978) (emphasis added). Following the decision, Texas authorized illegitimate children to obtain support from their fathers. But the legislature required as a first step that paternity must be judicially determined, and imposed a limitations period within which suit must be brought of one year from birth of the child. If suit is not brought within that period the child could never obtain support at any age from his father. No limitation was imposed on the opportunity of a natural child to seek support, up to age 18. In Mills v. Habluetzel, 456 U.S. 91 (1982), the Court invalidated the one-year limitation. Although a state has an interest in avoiding stale or fraudulent claims, the limit must not be so brief as to deny such children a reasonable opportunity to show paternity. Similarly, a 2-year statute of limitations on paternity and support actions was held to deny equal protection to illegitimates in Pickett v. Brown, 462 U.S. 1 (1983), and a 6-year limit was struck down in Clark v. Jeter, 486 U.S. 456 (1988). In both cases the Court pointed to the fact that increasingly sophisticated genetic tests are minimizing the “lurking problems with respect to proof of paternity” referred to in Gomez, 409 U.S. at 538. Also, the state’s interest in imposing the 2-year limit was undercut by exceptions (e.g., for illegitimates receiving public assistance), and by different treatment for minors generally; similarly, the importance of imposing a 6-year limit was belied by that state’s more recent enactment of a non-retroactive 18-year limit for paternity and support actions.

1958 Jiminez v. Weinberger, 417 U.S. 628 (1974). But cf. Califano v. Boles, 443 U.S. 282 (1979). See also New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973) (limiting welfare assistance to households in which parents are ceremonially married and the children are legitimate or adopted denied illegitimate children equal protection); Richardson v. Davis, 409 U.S. 1069 (1972), aff’g 342 F. Supp. 588 (D. Conn.) (3-judge court), and Richardson v. Griffin, 409 U.S. 1069 (1972), aff’g 346 F. Supp. 1226 (D. Md.) (3-judge court) (Social Security provision entitling illegitimate children to monthly benefit payments only to extent that payments to widow and legitimate children do not exhaust benefits allowed by law denies illegitimates equal protection).

1959 Mathews v. Lucas, 427 U.S. 495 (1976). It can be seen that the only difference between Jiminez and Lucas is that in the former the Court viewed the benefits as owing to all children and not just to dependents, while in the latter the benefits were viewed as owing only to dependents and not to all children. But it is not clear that in either case the purpose determined to underlie the provision of benefits was compelled by either statutory language or legislative history. For a particularly good illustration of the difference such a determination of purpose can make and the way the majority and dissent in a 5-to-4 decision read the purpose differently, see Califano v. Boles, 443 U.S. 282 (1979).

1960 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50–51 (1959).

1961 Article I, § 2, cl. 1 (House of Representatives); Seventeenth Amendment (Senators); Article II, § 1, cl. 2 (presidential electors); Article I, § 4, cl. 1 (times, places, and manner of holding elections).

1962 Fourteenth Amendment, § 2. Justice Harlan argued that the inclusion of this provision impliedly permitted the states to discriminate with only the prescribed penalty in consequence and that therefore the equal protection clause was wholly inapplicable to state election laws. Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting); Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting); Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (concurring and dissenting). Justice Brennan undertook a rebuttal of this position in Oregon v. Mitchell, 400 U.S. at 229, 250 (concurring and dissenting). But see Richardson v. Ramirez, 418 U.S. 24 (1974), where § 2 was relevant in precluding an equal protection challenge.

1963 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959).

1964 Reynolds v. Sims, 377 U.S. 533, 561–62 (1964).

1965 Kramer v. Union Free School Dist., 395 U.S. 621, 626–28 (1969). See also Hill v. Stone, 421 U.S. 289, 297 (1975). But cf. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978).

1966 Thus, in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 34–35 nn.74 & 78 (1973), a major doctrinal effort to curb the “fundamental interest” side of the “new” equal protection, the Court acknowledged that the right to vote did not come within its prescription that rights to be deemed fundamental must be explicitly or implicitly guaranteed in the Constitution. Nonetheless, citizens have a “constitutionally protected right to participate in elections,” which is protected by the Equal Protection Clause. Dunn v. Blumstein, 405 U.S. 330, 336 (1972). The franchise is the guardian of all other rights. Reynolds v. Sims, 377 U.S. 533, 562 (1964).

1967 Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (internal quotation marks omitted, emphasis added by the Court) (striking down a Tennessee statute that imposed a requirement of one year in the state and three months in the county). The Court did not indicate what, if any, shorter duration it would permit, although it noted that, in the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. § 1973aa–1, “Congress outlawed State durational residence requirements for presidential and vice-presidential elections, and prohibited the States from closing registration more than 30 days before Congress prescribed a thirty-day period for purposes of voting in presidential elections.” Id. at 344. Note also that it does not matter whether one travels interstate or intrastate. Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970), aff’d, 405 U.S. 1035 (1972).

1968 405 U.S. at 336, 338. See also Purcell v. Gonzalez, 549 U.S. 1, 2 (2006) (per curiam) (vacating an injunction against “requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day,” but expressing no opinion on the constitutionality of the requirement).

1969 405 U.S. at 345. Other asserted state interests—knowledgeability of voters, common interests, intelligent voting—were said either not to be served by the requirements or to be impermissible interests.

1970 Marston v. Lewis, 410 U.S. 679 (1973). Registration was by volunteer workers who made statistically significant errors requiring corrections by county recorders before certification. Primary elections were held in the fall, thus occupying the time of the recorders, so that a backlog of registrations had to be processed before the election. A period of 50 days rather than 30, the Court thought, was justifiable. However, the same period was upheld for another state on the authority of Marston in the absence of such justification, but it appeared that the plaintiffs had not controverted the state’s justifying evidence. Burns v. Fortson, 410 U.S. 686 (1973). Justices Brennan, Douglas, and Marshall dissented in both cases. Id. at 682, 688.

1971 Evans v. Cornman, 398 U.S. 419 (1970).

1972 Carrington v. Rash, 380 U.S. 89 (1965).

1973 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966). Justices Black, Harlan, and Stewart dissented. Id. at 670, 680. Poll tax qualifications had previously been upheld in Breedlove v. Suttles, 302 U.S. 277 (1937); and Butler v. Thompson, 341 U.S. 937 (1951).

1974 Kramer v. Union Free School Dist., 395 U.S. 621 (1969). The Court assumed without deciding that the franchise in some circumstances could be limited to those “primarily interested” or “primarily affected” by the outcome, but found that the restriction permitted some persons with no interest to vote and disqualified others with an interest. Justices Stewart, Black, and Harlan dissented. Id. at 594.

1975 Cipriano v. City of Houma, 395 U.S. 701 (1969). Justices Black, Harlan, and Stewart concurred specially. Id. at 707.

1976 City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). Justice Stewart and Chief Justice Burger dissented. Id. at 215. In Hill v. Stone, 421 U.S. 289 (1975), the Court struck down a limitation on the right to vote on a general obligation bond issue to persons who have “rendered” or listed real, mixed, or personal property for taxation in the election district. It was not a “special interest” election since a general obligation bond issue is a matter of general interest.

1977 Crawford v. Marion County Election Board, 128 S. Ct. 1610, 1621 (2008) (plurality). See Fourteenth Amendment, “Voting and Ballot Access,” infra.

1978 Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973). See also Associated Enterprises v. Toltec Watershed Improv. Dist., 410 U.S. 743 (1973) (limitation of franchise to property owners in the creation and maintenance of district upheld). Justices Douglas, Brennan, and Marshall dissented in both cases. Id. at 735, 745.

1979 410 U.S. at 727–28.

1980 410 U.S. at 730, 732. Thus, the Court posited reasons that might have moved the legislature to adopt the exclusions.

1981 451 U.S. 355 (1981).

1982 The water district cases were distinguished in Quinn v. Millsap, 491 U.S. 95, 109 (1989), the Court holding that a “board of freeholders” appointed to recommend a reorganization of local government had a mandate “far more encompassing” than land use issues, as its recommendations “affect[ ] all citizens . . . regardless of land ownership.”

1983 Rosario v. Rockefeller, 410 U.S. 752 (1973). Justices Powell, Douglas, Brennan, and Marshall dissented. Id. at 763.

1984 Kusper v. Pontikes, 414 U.S. 51 (1973). Justices Blackmun and Rehnquist dissented. Id. at 61, 65.

1985 Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). Although independents were allowed to register in a party on the day before a primary, the state’s justifications for “protect[ing] the integrity of the Party against the Party itself” were deemed insubstantial. Id. at 224.

1986 457 U.S. 1 (1982). See also Fortson v. Morris, 385 U.S. 231 (1966) (legislature could select governor from two candidates having highest number of votes cast when no candidate received majority); Sailors v. Board of Elections, 387 U.S. 105 (1967) (appointment rather than election of county school board); Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y. 1968) (three-judge court), aff’d, 393 U.S. 405 (1969) (gubernatorial appointment to fill United States Senate vacancy).

1987 McDonald v. Board of Election Comm’rs, 394 U.S. 802 (1969). But see Goosby v. Osser, 409 U.S. 512 (1973) (McDonald does not preclude challenge to absolute prohibition on voting).

1988 O’Brien v. Skinner, 414 U.S. 524 (1974). See American Party of Texas v. White, 415 U.S. 767, 794–95 (1974).

1989 Turner v. Fouche, 396 U.S. 346, 362–63 (1970) (voiding a property qualification for appointment to local school board). See also Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977) (voiding a qualification for appointment as airport commissioner of ownership of real or personal property that is assessed for taxes in the jurisdiction in which airport is located); Quinn v. Millsap, 491 U.S. 95 (1989) (voiding property ownership requirement for appointment to board authorized to propose reorganization of local government). Cf. Snowden v. Hughes, 321 U.S. 1 (1944).

1990 405 U.S. 134, 142–44 (1972).

1991 405 U.S. at 144–49.

1992 Lubin v. Panish, 415 U.S. 709, 716 (1974).

1993 Concurring, Justices Blackmun and Rehnquist suggested that a reasonable alternative would be to permit indigents to seek write-in votes without paying a filing fee, 415 U.S. at 722, but the Court indicated this would be inadequate. Id. at 719 n.5.

1994 457 U.S. 957 (1982). A plurality of four contended that save in two circumstances—ballot access classifications based on wealth and ballot access classifications imposing burdens on new or small political parties or independent candidates— limitations on candidate access to the ballot merit only traditional rational basis scrutiny, because candidacy is not a fundamental right. The plurality found both classifications met the standard. Id. at 962–73 (Justices Rehnquist, Powell, O’Connor, and Chief Justice Burger). Justice Stevens concurred, rejecting the plurality’s standard, but finding that inasmuch as the disparate treatment was based solely on the state’s classification of the different offices involved, and not on the characteristics of the persons who occupy them or seek them, the action did not violate the Equal Protection Clause. Id. at 973. The dissent primarily focused on the First Amendment but asserted that the classifications failed even a rational basis test. Id. at 976 (Justices Brennan, White, Marshall, and Blackmun).

1995 393 U.S. 23 (1968). “[T]he totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.” Id. at 34. Justices Douglas and Harlan would have relied solely on the First Amendment, id. at 35, 41, and Justices Stewart and White and Chief Justice Warren dissented. Id. at 48, 61, 63.

1996 Moore v. Ogilvie, 394 U.S. 814 (1969) (overruling MacDougall v. Green, 335 U.S. 281 (1948)).

1997 Jenness v. Fortson, 403 U.S. 431 (1971).

1998 Storer v. Brown, 415 U.S. 724 (1974); American Party of Texas v. White, 415 U.S. 767 (1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979). See also Indiana Communist Party v. Whitcomb, 414 U.S. 441 (1974) (impermissible to condition ballot access upon a political party’s willingness to subscribe to oath that party “does not advocate the overthrow of local, state or national government by force or violence,” opinion of Court based on First Amendment, four Justices concurring on equal protection grounds).

1999 Storer v. Brown, 415 U.S. 724, 746 (1974).

2000 415 U.S. at 730 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)).

2001 American Party of Texas v. White, 415 U.S. 767, 783 (1974). In Storer v. Brown, 415 U.S. 724, 738–40 (1974), the Court remanded so that the district court could determine whether the burden imposed on an independent party was too severe, it being required in 24 days in 1972 to gather 325,000 signatures from a pool of qualified voters who had not voted in that year’s partisan primary elections. See also Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (voiding provision that required a larger number of signatures to get on ballot in subdivisions than statewide).

2002 American Party of Texas v. White, 415 U.S. 767, 788–91 (1974). The percentages varied with the office but no more than 500 signatures were needed in any event.

2003 415 U.S. at 785–87.

2004 Storer v. Brown, 415 U.S. 724, 728–37 (1974). Dissenting, Justices Brennan, Douglas and Marshall thought the state interest could be adequately served by a shorter time period than a year before the primary election, which meant in effect 17 months before the general election. Id. at 755.

2005 Munro v. Socialist Workers Party, 479 U.S. 189 (1986).

2006 American Party of Texas v. White, 415 U.S. 767, 794–95 (1974). Upheld, however, was state financing of the primary election expenses that excluded convention expenses of the small parties. Id. at 791–94. But the major parties had to hold conventions simultaneously with the primary elections the cost of which they had to bear. For consideration of similar contentions in the context of federal financing of presidential elections, see Buckley v. Valeo, 424 U.S. 1, 93–97 (1976).

2007 Anderson v. Celebrezze, 460 U.S. 780 (1983). State interests in assuring voter education, treating all candidates equally (candidates participating in a party primary also had to declare candidacy in March), and preserving political stability, were deemed insufficient to justify the substantial impediment to independent candidates and their supporters.

2008 This subject is also discussed under Article I, Section 2, Congressional Districting.

2009 See discussion, supra. Applicability of the doctrine to cases of this nature was left unresolved in Smiley v. Holm, 285 U.S. 355 (1932), and Wood v. Broom, 287 U.S. 1 (1932), was supported by only a plurality in Colegrove v. Green, 328 U.S. 549 (1946), but became the position of the Court in subsequent cases. Cook v. Fortson, 329 U.S. 675 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947); MacDougall v. Green, 335 U.S. 281 (1948); South v. Peters, 339 U.S. 276 (1950); Hartsfield v. Sloan, 357 U.S. 916 (1958).

2010 369 U.S. 186 (1962).

2011 376 U.S. 1 (1964). Striking down a county unit system of electing a governor, the Court, in an opinion by Justice Douglas, had already coined a variant phrase of the more popular “one man, one vote.” “The conception of political equality from the Declaration of Independence to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.” Gray v. Sanders, 372 U.S. 368, 381 (1963).

2012 Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964); Donis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). In the last case, the Court held that approval of the apportionment plan in a vote of the people was insufficient to preserve it from constitutional attack. “An individual’s constitutionally protected right to cast an equally weighed vote cannot be denied even by a vote of a majority of a State’s electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause.” Id. at 736. In Reynolds v. Sims, Justice Harlan dissented wholly, denying that the Equal Protection Clause had any application at all to apportionment and districting and contending that the decisions were actually the result of a “reformist” nonjudicial attitude on the part of the Court. 377 U.S. at 589. Justices Stewart and Clark dissented in two and concurred in four cases on the basis of their view that the Equal Protection Clause was satisfied by a plan that was rational and that did not systematically frustrate the majority will. 377 U.S. at 741, 744.

2013 Reynolds v. Sims, 377 U.S. 533, 568 (1964).

2014 377 U.S. at 577.

2015 Sailors v. Board of Education, 387 U.S. 105 (1967).

2016 390 U.S. 474 (1968). Justice Harlan continued his dissent from the Reynolds line of cases, id. at 486, while Justices Fortas and Stewart called for a more discerning application and would not have applied the principle to the county council here. Id. at 495, 509.

2017 397 U.S. 50 (1970). The governmental body here was the board of trustees of a junior college district. Justices Harlan and Stewart and Chief Justice Burger dissented. Id. at 59, 70.

2018 The Court observed that there might be instances “in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds,supra, might not be required . . . .” 397 U.S. at 56. For cases involving such units, see Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973); Associated Enterprises v. Toltec Watershed Imp. Dist., 410 U.S. 743 (1973); Ball v. James, 451 U.S. 355 (1981). Judicial districts need not comply with Reynolds. Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) (three-judge court), aff’d, per curiam, 409 U.S. 1095 (1973).

2019 385 U.S. 440, 443–44 (1967). See also Kilgarlin v. Hill, 386 U.S. 120 (1967).

2020 Kirkpatrick v. Preisler, 385 U.S. 450 (1967); Duddleston v. Grills, 385 U.S. 455 (1967).

2021 Kirkpatrick v. Preisler, 394 U.S. 526, 530–31 (1969); Wells v. Rockefeller, 394 U.S. 542 (1969). The Court has continued to adhere to this strict standard for congressional districting, voiding a plan in which the maximum deviation between largest and smallest district was 0.7%, or 3,674 persons. Karcher v. Daggett, 462 U.S. 725 (1983) (rejecting assertion that deviations less than estimated census error are necessarily permissible).

2022 The Court relied on Swann in disapproving of only slightly smaller deviations (roughly 28% and 25%) in Whitcomb v. Chavis, 403 U.S. 124, 161–63 (1971). In Connor v. Williams, 404 U.S. 549, 550 (1972), the Court said of plaintiffs’ reliance on Preisler and Wells that “these decisions do not squarely control the instant appeal since they do not concern state legislative apportionment, but they do raise substantial questions concerning the constitutionality of the District Court’s plan as a design for permanent apportionment.”

2023 403 U.S. 182 (1971).

2024 In Evenwel v. Abbott, a case involving representation in the state legislature, the Court rejected the argument that the Equal Protection Clause prohibits states from using total population in determining voting districts and instead requires the use of the voting population. 578 U.S. ___, No. 14–940, slip op. (2016). The Court based its conclusion here, in part, on the debates over representation in the U.S. House and Senate at the time of the Constitution’s framing, as well as subsequent debates over the Fourteenth Amendment at the time of its ratification. Id. at 8–12. The Court also noted prior decisions focusing on “equality of representation,” and not “voter equality,” id. at 16, and the settled practices of all fifty states and “countless local jurisdictions” in apportioning representation based on total population. Id. at 18. It is important to note, however, that the Evenwel Court declined to find that apportionment based on total population is constitutionally required, and the Court has, in other cases, upheld the use of districts based on voting population. See Burns v. Richardson, 384 U.S. 73 (1966) (rejecting a challenge to Hawaii’s use of the registered-voter population).

2025 New York City Bd. of Estimate v. Morris, 489 U.S. 688 (1989). Under the plan each of the City’s five boroughs was represented on the board by its president and each of these members had one vote; three citywide elected officials (the mayor, the comptroller, and the president of the city council) were also placed on the board and given two votes apiece (except that the mayor had no vote on the acceptance or modification of his budget proposal). The Court also ruled that, when measuring population deviation for a plan that mixes at-large and district representation, the at-large representation must be taken into account. Id. at 699–701.

2026 Mahan v. Howell, 410 U.S. 315, 320–25 (1973).

2027 410 U.S. at 325–30. The Court indicated that a 16.4% deviation “may well approach tolerable limits.” Id. at 329. Dissenting, Justices Brennan, Douglas, and Marshall would have voided the plan; additionally, they thought the deviation was actually 23.6% and that the plan discriminated geographically against one section of the state, an issue not addressed by the Court. In Chapman v. Meier, 420 U.S. 1, 21–26 (1975), holding that a 20% variation in a court-developed plan was not justified, the Court indicated that such a deviation in a legislatively-produced plan would be quite difficult to justify. See also Summers v. Cenarrusa, 413 U.S. 906 (1973) (vacating and remanding for further consideration the approval of a 19.4% deviation). But see Voinovich v. Quilter, 507 U.S. 146 (1993) (vacating and remanding for further consideration the rejection of a deviation in excess of 10% intended to preserve political subdivision boundaries). In Brown v. Thomson, 462 U.S. 835 (1983), the Court held that a consistent state policy assuring each county at least one representative can justify substantial deviation from population equality when only the marginal impact of representation for the state’s least populous county was challenged (the effect on plaintiffs, voters in larger districts, was that they would elect 28 of 64 members rather than 28 of 63), but there was indication in Justice O’Connor’s concurring opinion that a broader-based challenge to the plan, which contained a 16% average deviation and an 89% maximum deviation, could have succeeded.

2028 Gaffney v. Cummings, 412 U.S. 735, 745 (1973). The maximum deviation was 7.83%. The Court did not precisely indicate at what point a deviation had to be justified, but it applied the de minimis standard in White v. Regester, 412 U.S. 755 (1973), in which the maximum deviation was 9.9%. “Very likely, larger differences between districts would not be tolerable without justification . . . .” Id. at 764. Justices Brennan, Douglas, and Marshall dissented. See also Brown v. Thomson, 462 U.S. 835, 842 (1983): “Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within [the] category of minor deviations [insufficient to make out a prima facie case].”

2029 Gaffney v. Cummings, 412 U.S. 735, 748 (1973). By contrast, the Court has held that estimated margin of error for census statistics does not justify deviation from population equality in congressional districting. Karcher v. Daggett, 462 U.S. 725 (1983).

2030 Chapman v. Meier, 420 U.S. 1, 27 (1975). The Court did say that court-ordered reapportionment of a state legislature need not attain the mathematical preciseness required for congressional redistricting. Id. at 27 n.19. Apparently, therefore, the Court’s reference to both “de minimis” variations and “approximate population equality” must be read as referring to some range approximating the Gaffney principle. See also Connor v. Finch, 431 U.S. 407 (1977).

2031 578 U.S. ___, No. 14–232, slip op. at 5 (2016). See also id. (noting the “inherent difficulties” of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality).

2032 Id. at 1.

2033 See id. at 5–9.

2034 Id. at 9–10.

2035 Id. at 10.

2036 570 U.S. ___, No. 12–96, slip op. (2013).

2037 See 578 U.S. ___, No. 14–232, slip op. at 10 (2016).

2038 Gomillion v. Lightfoot, 364 U.S. 339 (1960); Wright v. Rockefeller, 376 U.S. 52 (1964); Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965) (three-judge court). Hunt v. Cromartie, 526 U.S. 541 (1999).

2039 Miller v. Johnson, 515 U.S. 900, 916 (1995); see also Shaw v. Hunt, 517 U.S. 899, 904–05 (1996). Furthermore, in determining whether racial criteria predominate in the drawing of a district, the Court has noted that the determination must be made with respect to a specific electoral district, as opposed to a state as an undifferentiated whole. See Ala. Legislative Black Caucus v. Alabama, 575 U.S. ___, No. 13–895, slip op. at 6 (2015).

2040 Cooper v. Harris, 581 U.S. ___, No. 15–1262, slip op. at 2 (2017) (quoting Miller, 515 U.S. at 916).

2041 Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993). See also Shaw v. Hunt, 517 U.S. 899 (1996) (creating an unconventionally-shaped majority-minority congressional district in one portion of state in order to alleviate effect of fragmenting geographically compact minority population in another portion of state does not remedy a violation of § 2 of Voting Rights Act, and is thus not a compelling governmental interest). Moreover, in discussing a challenger’s reliance on the “bizarreness” of a district’s shape, the Court has cautioned that “[t]he Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.” Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. ___, No. 15– 680, slip op. at 9 (2017) (holding that racial considerations predominated in the redrawing of twelve Virginia state legislative districts, but left it to the district court to determine whether the state succeeded in “demonstrat[ing] that its districting legislation is narrowly tailored to achieve a compelling interest”).

2042 Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion of Justice O’Connor, joined by Chief Justice Rehnquist and Justice Kennedy) (also involving congressional districts). When a state relies on compliance with the Voting Rights Act “to justify race-based districting,” however, the state “must show (to meet the ‘narrow tailoring’ requirement) that it had ‘a strong basis in evidence’ for concluding that the statute required its action.” Cooper, 581 U.S. at ___, slip op. at 3 (quoting Ala. Legislative Black Caucus, 575 U.S. at ___, slip op. at 22). In other words, “the State must establish that it had ‘good reasons’ to think that it would transgress the Act if it did not draw race-based district lines.” Id. at 3 (quoting Ala. Legislative Black Caucus, 575 U.S. at ___, slip op. at 22) (emphasis in original).

2043 See Easley v. Cromartie, 532 U.S. 234 (2001).

2044 See Cooper, slip op. at 34 (holding that racial considerations predominated in the redrawing of two congressional districts in North Carolina and “that § 2 of the [Voting Rights Act] gave North Carolina no good reason to reshuffle voters because of their race”).

2045 E.g., WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965) (three-judge court), aff’d, 382 U.S. 4 (1965); Sincock v. Gately, 262 F. Supp. 739 (D. Del. 1967) (three-judge court).

2046 Gaffney v. Cummings, 412 U.S. 735, 751, 754 (1973).

2047 478 U.S. 109 (1986). The vote on justiciability was 6–3, with Justice White’s opinion of the Court being joined by Justices Brennan, Marshall, Blackmun, Powell, and Stevens. This represented an apparent change of view by three of the majority Justices, who just two years earlier had denied that “the existence of noncompact or gerrymandered districts is by itself a constitutional violation.” Karcher v. Daggett, 466 U.S. 910, 917 (1983) (Justice Brennan, joined by Justices White and Marshall, dissenting from denial of stay in challenge to district court’s rejection of a remedial districting plan on the basis that it contained “an intentional gerrymander”).

2048 Only Justices Powell and Stevens thought the Indiana redistricting plan void; Justice White, joined by Justices Brennan, Marshall, and Blackmun, thought the record inadequate to demonstrate continuing discriminatory impact, and Justice O’Connor, joined by Chief Justice Burger and by Justice Rehnquist, would have ruled that partisan gerrymandering is nonjusticiable as constituting a political question not susceptible to manageable judicial standards.

2049 377 U.S. 533, 565–66 (1964). This phrase has had a life of its own in the commentary. See D. Alfange, Jr., Gerrymandering and the Constitution: Into the Thorns of the Thicket at Last, 1986 SUP. CT. REV. 175, and sources cited therein. It is not clear from its original context, however, that the phrase was coined with such broad application in mind.

2050 The quotation is from the Baker v. Carr measure for existence of a political question, 369 U.S. 186, 217 (1962).

2051 478 U.S. at 133. Joining in this part of the opinion were Justices Brennan, Marshall, and Blackmun.

2052 478 U.S. at 173. A similar approach had been proposed in Justice Stevens’ concurring opinion in Karcher v. Daggett, 462 U.S. 725, 744 (1983).

2053 541 U.S. 267 (2004).

2054 541 U.S. at 285–86.

2055 541 U.S. at 281–90 .

2056 541 U.S. at 271 (noting that Article I, § 4 provides that Congress may alter state laws regarding the manner of holding elections for Senators and Representatives).

2057 541 U.S. at 307–08 (Justice Kennedy, concurring).

2058 541 U.S. at 306 (Justice Kennedy, concurring). Although Justice Kennedy admitted that no workable model had been proposed either to evaluate the burden partisan districting imposed on representational rights or to confine judicial intervention once a violation has been established, he held out the possibility that such a standard may emerge, based on either equal protection or First Amendment principles.

2059 548 U.S. 399, 417 (2006). The design of one congressional district was held to violate the Voting Rights Act because it diluted the voting power of Latinos. Id. at 423–443.

2060 548 U.S. at 414.

2061 548 U.S. at 418, 417.

2062 548 U.S. at 418.

2063 548 U.S. at 419.

2064 548 U.S. at 420–21.

2065 548 U.S. at 422.

2066 Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richardson, 384 U.S. 73, 88–89 (1965); Kilgarlin v. Hill, 386 U.S. 120, 125 n.3 (1967).

2067 403 U.S. 124 (1971). Justice Harlan concurred specially, id. at 165, and Justices Douglas, Brennan, and Marshall, dissented, finding racial discrimination in the operation of the system. Id. at 171.

2068 412 U.S. 755, 765–70 (1973).

2069 “To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” 412 U.S. at 765–66.

2070 446 U.S. 55 (1980).

2071 446 U.S. at 65–68 (Justices Stewart, Powell, Rehnquist, and Chief Justice Burger). On intent versus impact analysis, see discussion, supra. Justices Blackmun and Stevens concurred on other grounds, id. at 80, 83, and Justices White, Brennan, and Marshall dissented. Id. at 94, 103. Justice White agreed that purposeful discrimination must be found, id. at 101, while finding it to have been shown, Justice Blackmun assumed that intent was required, and Justices Stevens, Brennan, and Marshall would not so hold.

2072 446 U.S. at 68–74. Four Justices rejected this view of the plurality, while Justice Stevens also appeared to do so but followed a mode of analysis significantly different from that of any other Justice.

2073 458 U.S. 613 (1982). Joining the opinion of the Court were Justices White, Brennan, Marshall, Blackmun, O’Connor, and Chief Justice Burger. Dissenting were Justices Powell and Rehnquist, id. at 628, and Justice Stevens. Id. at 631.

2074 On the legislation, see “Congressional Definition of Fourteenth Amendment Rights,” infra.

2075 478 U.S. 30, 50–51 (1986). Use of multimember districting for purposes of political gerrymandering was at issue in Davis v. Bandemer, 478 U.S. 109 (1986), decided the same day as Gingles, but there was no agreement as to the appropriate constitutional standard. A plurality led by Justice White relied on the Whitcomb v. Chavis reasoning, suggesting that proof that multimember districts were constructed for the advantage of one political party falls short of the necessary showing of deprivation of opportunity to participate in the electoral process. 478 U.S. at 136– 37. Two Justices thought the proof sufficient for a holding of invalidity, the minority party having won 46% of the vote but only 3 of 21 seats from the multimember districts, and “the only discernible pattern [being] the appearance of these districts in areas where their winner-take-all aspects can best be employed to debase [one party’s] voting strength,” (id. at 179–80, Justices Powell and Stevens), and three Justices thought political gerrymandering claims to be nonjusticiable.

2076 E.g., Reynolds v. Sims, 377 U.S. 533, 586–87 (1964); Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 195–200 (1972); White v. Weiser, 412 U.S. 783, 794–95 (1973); Upham v. Seamon, 456 U.S. 37, 41–42 (1982). When courts draw their own plans, the court is held to tighter standards than is a legislature and has to observe smaller population deviations and use single-member districts more than multi-member ones. Connor v. Johnson, 402 U.S. 690, 692 (1971); Chapman v. Meier, 420 U.S. 1, 14–21 (1975); Wise v. Lipscomb, 437 U.S. 535, 540 (1978). Cf. Mahan v. Howell, 410 U.S. 315, 333 (1973).

2077 E.g., Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972) (reduction of numbers of members); Whitcomb v. Chavis, 403 U.S. 124, 160–61 (1971) (disregard of policy of multimember districts not found unconstitutional); White v. Weiser, 412 U.S. 783, 794–95 (1973); Upham v. Seamon, 406 U.S. 37 (1982). But see Karcher v. Daggett, 466 U.S. 910 (1983) (denying cert. over dissent’s suggestion that court-adopted congressional districting plan had strayed too far from the structural framework of the legislature’s invalidated plan).

2078 531 U.S. 98 (2000).

2079 531 U.S. at 109.

2080 372 U.S. 368 (1963).

2081 403 U.S. 1 (1971).

2082 Saenz v. Roe, 526 U.S. 489 (1999). “For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of ‘free ingress and regress to and from’ neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’” Id. at 501 (citations omitted).

2083 Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (“without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.”).

2084 Saenz v. Roe, 526 U.S. 489, 502–03 (1999).

2085 Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Because the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the Privileges and Immunities Clause, Article IV, § 2, cl. 1.

2086 Intrastate travel is protected to the extent that the classification fails to meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three-judge court), aff’d. per curiam, 405 U.S. 1035 (1972), with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the commerce clause cases, in which discrimination may run against instate as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).

2087 Shapiro v. Thompson, 394 U.S. 618, 629–31, 638 (1969); Dunn v. Blumstein, 405 U.S. 330, 338–42 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); Jones v. Helms, 452 U.S. 412, 420–21 (1981). See also Oregon v. Mitchell, 400 U.S. 112, 236–39 (1970) (Justices Brennan, White, and Marshall), and id. at 285–92 (Justices Stewart and Blackmun and Chief Justice Burger).

2088 Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham v. Richardson, 403 U.S. 365, 375–76 (1971).

2089 Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314 U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source of the right to travel and the reasons for reliance on the Equal Protection Clause are questions puzzled over and unresolved by the Court. United States v. Guest, 383 U.S. 745, 758, 759 (1966), and id. at 763–64 (Justice Harlan concurring and dissenting), id. at 777 n.3 (Justice Brennan concurring and dissenting); Shapiro v. Thompson, 394 U.S. 618, 629–31 (1969), and id. at 671 (Justice Harlan dissenting); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 31–32 (1973); Jones v. Helms, 452 U.S. 412, 417–19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Justice Brennan concurring), 78–81 (Justice O’Connor concurring).

2090 394 U.S. 618 (1969).

2091 The durational residency provision established by Congress for the District of Columbia was also voided. 394 U.S. at 641–42.

2092 394 U.S. at 627–33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff’d sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the state solely to obtain welfare assistance.

2093 394 U.S. at 633–38. Shapiro was reaffirmed in Graham v. Richardson, 403 U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (voiding requirement of one year’s residency in county as condition to indigent’s receiving nonemergency hospitalization or medical care at county’s expense). When Connecticut and New York reinstituted the requirements, pleading a financial emergency as the compelling state interest, they were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff’d per curiam, 404 U.S. 1054 (1972); Lopez v. Wyman, Civ. No. 1971–308 (W.D.N.Y. 1971), aff’d per curiam, 404 U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971).

2094 405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five and seven years respectively for candidates for elective office were sustained in Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975).

2095 For additional discussion of durational residence as a qualification to vote, see Voter Qualifications, supra.

2096 Saenz v. Roe, 526 U.S. 489, 505 (1999).

2097 419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits. Id. at 418.

2098 419 U.S. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which was true in the prior cases as well and there held immaterial), and that possibly the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny.

2099 Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), aff’d per curiam, 401 U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452 & n.9 (1973), and id. at 456, 464, 467 (dicta). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 256 (1974), the Court, noting the results, stated that “some waiting periods . . . may not be penalties” and thus would be valid.

2100 Saenz v. Roe, 526 U.S. at 505.

2101 Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was the Court’s invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986).

2102 La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or other professions have evoked differing responses by lower courts.

2103 E.g., McCarthy v. Philadelphia Civil Service Comm’n, 424 U.S. 645 (1976) (ordinance requiring city employees to be and to remain city residents upheld). See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 (1974). See also Martinez v. Bynum, 461 U.S. 321 (1983) (bona fide residency requirement for free tuition to public schools).

2104 Jones v. Helms, 452 U.S. 412 (1981) (statute made it a misdemeanor to abandon a dependent child but a felony to commit the offense and then leave the state).

2105 434 U.S. 374 (1978).

2106 Although the Court’s due process decisions have broadly defined a protected liberty interest in marriage and family, no previous case had held marriage to be a fundamental right occasioning strict scrutiny. 434 U.S. at 396–397 (Justice Powell concurring).

2107 434 U.S. at 388. Although the passage is not phrased in the usual compelling interest terms, the concurrence and the dissent so viewed it without evoking disagreement from the Court. Id. at 396 (Justice Powell), 403 (Justice Stevens), 407 (Justice Rehnquist). Justices Powell and Stevens would have applied intermediate scrutiny to void the statute, both for its effect on the ability to marry and for its impact upon indigents. Id. at 400, 406 n.10.

2108 434 U.S. at 386–87. Chief Justice Burger thought the interference here was “intentional and substantial,” whereas the provision in Jobst was neither. Id. at 391 (concurring).

2109 434 U.S. 47 (1977).

2110 434 U.S. at 54. See also Mathews v. De Castro, 429 U.S. 181 (1976) (provision giving benefits to a married woman under 62 with dependent children in her care whose husband retires or becomes disabled but denying them to a divorced woman under 62 with dependents represents a rational judgment by Congress with respect to likely dependency of married but not divorced women and does not deny equal protection); Califano v. Boles, 443 U.S. 282 (1979) (limitation of certain Social Security benefits to widows and divorced wives of wage earners does not deprive mother of illegitimate child who was never married to wage earner of equal protection).

2111 See, e.g., Quilloin v. Walcott, 434 U.S. 246 (1978) (state’s giving to father of legitimate child who is divorced or separated from mother while denying to father of illegitimate child a veto over the adoption of the child by another does not under the circumstances deny equal protection. The circumstances were that the father never exercised custody over the child or shouldered responsibility for his supervision, education, protection, or care, although he had made some support payments and given him presents). Accord, Lehr v. Robertson, 463 U.S. 248 (1983).

2112 517 U.S. 620 (1996).

2113 Evans v. Romer, 854 P.2d 1270 (Colo. 1993).

2114 517 U.S. at 634, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).

2115 570 U.S. ___, No. 12–307, slip op. (2013).

2116 Defense of Marriage Act, Pub. L. 104–199, § 3, 110 Stat. 2419, 1 U.S.C. § 7 (2006).

2117 Section 3 also provided that “marriage” would mean only a legal union between one man and one woman.

2118 Windsor, slip op. at 14–16.

2119 Id. at 18–19.

2120 Id. at 19 (citing Romer v. Evans, 517 U.S. 620, 633).

2121 Id. at 18.

2122 Id. at 19–20.

2123 Id. at 21.

2124 Id. at 25–26.

2125 Id. at 20. Because the case was decided under the Due Process Clause of the Fifth Amendment, which comprehends both substantive due process and equal protection principles (as incorporated through the Fourteenth Amendment), this statement leaves unclear precisely how each of these doctrines bears on the presented issue.

2126 See 576 U.S. ___, No. 14–556, slip op. at 2 (2015).

2127 Id. at 10–19.

2128 Id. at 19.

2129 Id. at 19–21.

2130 Id. at 22.

2131 Id. at 23. Interestingly, however, the Obergefell Court did not engage in any traditional equal protection analysis in which a government’s classification is adjudged based on the nature of the classification and the relationship between the classification and the underlying justifications for the government policy. Instead the Obergefell Court concluded that state classifications distinguishing between opposite-and same-sex couples violated equal protection principles on their face and therefore were unconstitutional. Id. at 21–22; see also supra Equal Protection of the Laws: Equal Protection: Judging Classifications by Law: The New Standards: Active Review.

2132 San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973).

2133 351 U.S. 12 (1956).

2134 351 U.S. at 17, 18, 19. Although Justice Black was not explicit, it seems clear that the system was found to violate both the Due Process and Equal Protection Clauses. Justice Frankfurter’s concurrence dealt more expressly with the premise of the Black opinion. “It does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal, and that it is not Illinois that is responsible for disparity in material circumstances. Of course, a State need not equalize economic conditions. . . . But when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction were practical opportunity for review not foreclosed.” Id. at 23.

2135 372 U.S. 353 (1963). Justice Clark dissented, protesting the Court’s “new fetish for indigency,” id. at 358, 359, and Justices Harlan and Stewart also dissented. Id. at 360.

2136 372 U.S. at 357–58.

2137 Griffin v. Illinois, 351 U.S. 12, 34, 35 (1956).

2138 Douglas v. California, 372 U.S. 353, 361 (1963).

2139 372 U.S. at 363–67.

2140 Evitts v. Lucey, 469 U.S. 387, 405 (1985) (holding that due process requires that counsel provided for appeals as of right must be effective).

2141 Rinaldi v. Yeager, 384 U.S. 305, 310 (1966).

2142 Draper v. Washington, 372 U.S. 487, 496 (1963).

2143 Burns v. Ohio, 360 U.S. 252 (1959); Douglas v. Green, 363 U.S. 192 (1960).

2144 Smith v. Bennett, 365 U.S. 708 (1961).

2145 Griffin v. Illinois, 351 U.S. 12 (1956); Eskridge v. Washington Prison Bd., 357 U.S. 214 (1958) (unconstitutional to condition free transcript upon trial judge’s certification that “justice will thereby be promoted”); Draper v. Washington, 372 U.S. 487 (1963) (unconstitutional to condition free transcript upon judge’s certification that the allegations of error were not “frivolous”); Lane v. Brown, 372 U.S. 477 (1963) (unconstitutional to deny free transcript upon determination of public defender that appeal was in vain); Long v. District Court, 385 U.S. 192 (1966) (indigent prisoner entitled to free transcript of his habeas corpus proceeding for use on appeal of adverse decision therein); Gardner v. California, 393 U.S. 367 (1969) (on filing of new habeas corpus petition in appellate court upon an adverse nonappealable habeas ruling in a lower court where transcript was needed, one must be provided an indigent prisoner). See also Rinaldi v. Yeager, 384 U.S. 305 (1966). For instances in which a transcript was held not to be needed, see Britt v. North Carolina, 404 U.S. 266 (1971); United States v. MacCollom, 426 U.S. 317 (1976).

2146 Williams v. Oklahoma City, 395 U.S. 458 (1969); Mayer v. City of Chicago, 404 U.S. 189 (1971).

2147 Douglas v. California, 372 U.S. 353 (1963); Swenson v. Bosler, 386 U.S. 258 (1967); Anders v. California, 386 U.S. 738 (1967); Entsminger v. Iowa, 386 U.S. 748 (1967). A rule requiring a court-appointed appellate counsel to file a brief explaining reasons why he concludes that a client’s appeal is frivolous does not violate the client’s right to assistance of counsel on appeal. McCoy v. Court of Appeals, 486 U.S. 429 (1988). The right is violated if the court allows counsel to withdraw by merely certifying that the appeal is “meritless” without also filing an Anders brief supporting the certification. Penson v. Ohio, 488 U.S. 75 (1988). But see Smith v. Robbins, 528 U.S. 259 (2000) (upholding California law providing that appellate counsel may limit his or her role to filing a brief summarizing the case and record and requesting the court to examine record for non-frivolous issues). On the other hand, since there is no constitutional right to counsel for indigent prisoners seeking postconviction collateral relief, there is no requirement that withdrawal be justified in an Anders brief if a state has provided counsel for postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987) (counsel advised the court that there were no arguable bases for collateral relief).

2148 Evitts v. Lucey, 469 U.S. 387 (1985).

2149 Ross v. Moffitt, 417 U.S. 600 (1974). See also Fuller v. Oregon, 417 U.S. 40 (1974) (statute providing, under circumscribed conditions, that indigent defendant, who receives state-compensated counsel and other assistance for his defense, who is convicted, and who subsequently becomes able to repay costs, must reimburse state for costs of his defense in no way operates to deny him assistance of counsel or the equal protection of the laws).

2150 Murray v. Giarratano, 492 U.S. 1 (1989) (upholding Virginia’s system under which “unit attorneys” assigned to prisons are available for some advice prior to the filing of a claim, and a personal attorney is assigned if an inmate succeeds in filing a petition with at least one non-frivolous claim).

2151 Johnson v. Avery, 393 U.S. 483 (1969).

2152 Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1977).

2153 399 U.S. 235 (1970).

2154 401 U.S. 395 (1971). The Court has not yet treated a case in which the permissible sentence is “$30 or 30 days” or some similar form where either confinement or a fine will satisfy the State’s penal policy.

2155 383 U.S. 663, 666 (1966). The poll tax required to be paid as a condition of voting was $1.50 annually. Justices Black, Harlan, and Stewart dissented. Id. at 670, 680.

2156 383 U.S. at 668. The Court observed that “the right to vote is too precious, too fundamental to be so burdened or conditioned.” Id. at 670.

2157 405 U.S. 134 (1972).

2158 Lubin v. Panish, 415 U.S. 709 (1974). Note that the Court indicated that Bullock was decided on the basis of restrained review. Id. at 715.

2159 Bearden v. Georgia, 461 U.S. 660 (1983).

2160 128 S. Ct. 1610 (2008). Justice Stevens’ plurality opinion was joined by Chief Justice Roberts and Justice Kennedy. Justice Scalia wrote a concurring opinion that was joined by Justices Thomas and Alito, and Justices Souter, Ginsberg, and Breyer dissented.

2161 128 S. Ct. at 1622, 1621.

2162 128 S. Ct. at 1616.

2163 “A facial challenge must fail where the statute has a plainly legitimate sweep.” 128 S. Ct. at 1623 (internal quotation marks omitted).

2164 128 S. Ct. at 1624. “[A]ll of the Republicans in the [Indiana] General Assembly voted in favor of [the statute] and the Democrats were unanimous in opposing it.” Id. at 1623.

2165 128 S. Ct. at 1625, 1626.

2166 128 S. Ct. 1627, 1643 (citations omitted).

2167 401 U.S. 371 (1971).

2168 409 U.S. 434 (1973).

2169 409 U.S. at 443–46. The equal protection argument was rejected by using the traditional standard of review, bankruptcy legislation being placed in the area of economics and social welfare, and the use of fees to create a self-sustaining bankruptcy system being considered to be a rational basis. Dissenting, Justice Stewart argued that Boddie required a different result, denied that absolute preclusion of alternatives was necessary, and would have evaluated the importance of an interest asserted rather than providing that it need be fundamental. Id. at 451. Justice Marshall’s dissent was premised on an asserted constitutional right to be heard in court, a constitutional right of access regardless of the interest involved. Id. at 458. Justices Douglas and Brennan concurred in Justice Stewart’s dissent, as indeed did Justice Marshall.

2170 Ortwein v. Schwab, 410 U.S. 656 (1973). The division was the same 5-to-4 that prevailed in Kras.See also Lindsey v. Normet, 405 U.S. 56 (1972). But cases involving the Boddie principle do continue to arise. Little v. Streater, 452 U.S. 1 (1981) (in paternity suit that State required complainant to initiate, indigent defendant entitled to have State pay for essential blood grouping test); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (recognizing general right of indigent parent to appointed counsel when state seeks to terminate parental status, but using balancing test to determine that right was not present in this case).

2171 519 U.S. 102 (1996).

2172 519 U.S. at 106. See Boddie v. Connecticut, 401 U.S. 371 (1971).

2173 Mayer v. Chicago, 404 U.S. 189 (1971).

2174 519 U.S. at 121 (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)).

2175 411 U.S. 1 (1973). The opinion by Justice Powell was concurred in by the Chief Justice and Justices Stewart, Blackmun, and Rehnquist. Justices Douglas, Brennan, White, and Marshall dissented. Id. at 62, 63, 70.

2176 411 U.S. at 44–55. Applying the rational justification test, Justice White would have found that the system did not use means rationally related to the end sought to be achieved. Id. at 63.

2177 411 U.S. at 20. But see id. at 70, 117–24 (Justices Marshall and Douglas dissenting).

2178 411 U.S. at 29–39. But see id. at 62 (Justice Brennan dissenting), 70, 110–17 (Justices Marshall and Douglas dissenting).

2179 Cf. Plyler v. Doe, 457 U.S. 202 (1982). The case is also noted for its proposition that there were only two equal protection standards of review, a proposition even the author of the opinion has now abandoned.

2180 487 U.S. 450 (1988). This was a 5–4 decision, with Justice O’Connor’s opinion of the Court being joined by Chief Justice Rehnquist and Justices White, Scalia, and Kennedy, and with Justices Marshall, Brennan, Stevens, and Blackmun dissenting.

2181 487 U.S. at 462. The plaintiff child nonetheless continued to attend school, so the requirement was reviewed as an additional burden but not a complete obstacle to her education.

2182 432 U.S. 464 (1977).

2183 432 U.S. at 470–71.

2184 432 U.S. at 471–74. See also Harris v. McRae, 448 U.S. 297, 322–23 (1980). Total deprivation was the theme of Boddie and was the basis of concurrences by Justices Stewart and Powell in Zablocki v. Redhail, 434 U.S. 374, 391, 396 (1978), in that the State imposed a condition indigents could not meet and made no exception for them. The case also emphasized that Dandridge v. Williams, 397 U.S. 471 (1970), imposed a rational basis standard in equal protection challenges to social welfare cases. But see Califano v. Goldfarb, 430 U.S. 199 (1977), where the majority rejected the dissent’s argument that this should always be the same.

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