HRC Blog

In this blog series, HRC attorneys discuss news and break down legal theories relevant to a U.S. Supreme Court nomination and the recent retirement of Justice David Souter. The 14th Amendment of the United States Constitution establishes that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”  This is commonly referred to as the Equal Protection Clause. Enacted in 1868, in the wake of the Civil War, the 14th Amendment was a direct response to  states that were passing laws limiting the rights of African Americans.  The Equal Protection Clause explicitly stated American’s hopes for our country.  Over time, it has become one of the primary constitutional provisions used to achieve equality for all Americans.  For almost a century after its enactment, the Equal Protection Clause was largely toothless, as the Supreme Court rarely struck down a law on the grounds that it violated the Clause.  However, in 1938, the Court decided a case called United States v. Carolene Products Co., in which a company challenged the constitutionality of a federal law prohibiting the interstate shipment of a particular type of milk.  This case would be relatively unremarkable if it were not for a footnote included in the opinion.  In the body of the Court’s opinion, Justice Harlan Stone argued that certain laws are presumptively constitutional and should therefore be upheld if they “rest[] upon some rational basis within the knowledge and experience of the legislators[,]” then in the now famous footnote, he clarified that some laws require “more exacting judicial scrutiny,” such as laws affecting the rights contained in the first ten amendments of the Constitution or laws discriminating against certain minority groups who have had a historically  difficult time utilizing the political process to effect change.  The footnote in Carolene Products gave birth to the modern day Equal Protection analysis.  Under this three-tiered system, a court will evaluate a law by (1) strictly scrutinizing it, (2) utilizing heightened (or intermediate) scrutiny, or (3) reviewing the law under a rational-basis theory. Equal Protection jurisprudence continues to evolve; therefore, it is critical to probe Judge Sonia Sotomayor’s views on the subject.  While Sotomayor’s judicial record on the Equal Protection Clause is not expansive, a number of cases offer clues to her philosophy in this area. As a judge on the Second Circuit, Sotomayor was part of the three judge panel that held that a municipal fire department’s decision to throw out a promotion test in which none of the minority fire fighters received passing scores was constitutional. The case, Ricci v. DeStefano, was narrowly overturned by the Supreme Court last Monday. During her time as a district court judge, Sotomayor heard a case involving a plaintiff who was discriminated against on the basis of his sexual orientation. Sotomayor adopted the holding of several other circuits in what eventually became the holding in Romer v. Evans; that bare animus directed toward gay individuals is not a legitimate state interest. The place of sexual orientation within the Equal Protection framework remains the subject of debate. Many 14th amendment scholars have argued that sexual orientation should be given the highest level of review. In deciding In re Marriage Cases, the California Supreme Court made just such a decision based on the California Constitution. In the most recent case in which the U.S. Supreme Court addressed Equal Protection and sexual orientation, Lawrence v. Texas, Justice Kennedy’s majority opinion has left much uncertainty. Although almost every court has held that the Lawrence decision was meant to apply heightened scrutiny to sexual orientation, confusion over the exact level of scrutiny required in sexual orientation cases remains.  It is clear that the next Supreme Court Justice will play a crucial role in building on both the Romer and Lawrence decisions, and determining whether the Court will uphold the promise of the 14th Amendment and guarantee equal protection under law for members of the LGBT community. Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page. Contributed by Phil Medley, Summer 2009 McCleary Law Fellow