Flaws of the Tiers of Scrutiny
In the United States legal system, classifications and fundamental rights are protected by the Supreme Court’s tiers of scrutiny model. These tiers apply different levels of judicial scrutiny to different types of classifications. In theory, these leveled classifications provide the necessary additional constitutional protections for historically marginalized groups; however, in practice, the tiers of scrutiny fall short of this ideal. The amorphous tiers themselves create confusion and ambiguity, leading to arguably flawed judgments. Further, the tiers do not provide adequate support for all potential discrimination or classifications, specifically classifications based on gender or sexuality. Thus, the current tiers of scrutiny model is flawed because of its unclear application and because it does not protect equal rights against discrimination for all historically marginalized groups.
The Supreme Court adjudicates many cases involving protections against identity-based classifications or against prohibitions on fundamental rights, such as those outlined in the Bill of Rights. To guide such decisions, the Supreme Court has developed the tiers of scrutiny jurisprudential framework, which evaluates whether governmental actions violate individuals’ equal rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment. The tiers of scrutiny originated in the unassuming but now legendary footnote 4 of United States v. Carolene Products Co. (1938), which requires a “narrower scope” for issues concerning “discrete and insular minorities” or the “First ten Amendments.”1 There are three main tiers of scrutiny: strict scrutiny, intermediate scrutiny, and rational basis review. Classifications against race or “fundamental rights” trigger strict scrutiny, meaning that they must be narrowly tailored to a compelling governmental interest, established in Carolene Products, used in Korematsu v. United States (1944),2 and further defined in Johnson v. California (2004).3 Intermediate scrutiny applies to classifications based on gender, as established in Craig v. Boren (1976)4 and further defined in United States v. Virginia (1996).5 These classifications must be substantially related to important governmental objectives and require exceedingly persuasive justification. Finally, rational basis applies to any other classification, only requiring that the state interest is legitimate and the classification is rationally related (Logan v. Zimmerman Brush Co. (1982))6 and non-arbitrary (United States Department of Agriculture v. Moreno (1973)).7 There are additional levels and subcategories, such as rational basis with bite and intermediate plus, which compound the confusion and ineffectiveness of the tiered structure.
Some scholars argue that alternative frameworks should be adopted instead of the complicated tiers of scrutiny model. For example, Danielle Stefanucci from the St. John’s Law Review argues that the Equal Protection Clause should instead be applied to everyone equally, balancing the governmental and individual interest on a case-by-case basis.8 Stefanucci argues that the tiers of scrutiny as applied to race and gender are unsuitable in the modern era; moreover, the Supreme Court fails to accurately adhere to the levels of scrutiny it has previously defined.9 Stefanucci’s first argument may be dubious. After all, stricter scrutiny may be required when balancing governmental and individual interests if those governmental interests affect historically marginalized groups or minorities.
As such, Stefanucci’s proposition of evaluating all cases on an item-by-item basis undermines the jurisprudential structure of precedent and legitimacy. By eliminating the rational basis test, this proposal would essentially require the Supreme Court to hear every case relating to any sort of classification, ranging from identity-based classifications on race or gender to minor distinctions created for administrative ease. As an example of the latter, in Armour v. Indianapolis (2012), the Court decided that administrative ease was a rationally related distinction to not reimburse property owners who had already paid in full, after the city did away with any fines.10 In practice, Stefanucci’s model would be a judicial nightmare: the Supreme Court must ensure some semblance of structure and precedence for the judicial system. In fact, the rational basis test was originally established to create a framework for the Supreme Court to maintain supremacy over lower courts without interfering in every case, as the test gave lower courts a clear standard that certain governmental actions were required to satisfy.11
Rather than entirely eliminating the tiers, the existing structure may be simply reduced to two tiers: strict scrutiny for fundamental rights and classifications affecting historically marginalized groups, and rational basis to balance governmental interests for all other cases. Eliminating the confusing intermediate tiers of scrutiny would apply the Equal Protection Clause more judiciously to groups that have been historically discriminated against and provide heightened constitutional protections for these groups.
The highest level of judicial scrutiny is strict scrutiny, which is triggered by classifications based on race or fundamental rights. However, even the most stringent tier of scrutiny can be misapplied by the Court. The Supreme Court’s decision in Korematsu v. United States (1944) exemplifies a massive misapplication of the tiers of scrutiny. The Korematsu decision affirmed the constitutionality of moving Japanese Americans to relocation camps during World War II.12 This case is the epitome of a race-based classification, which should clearly trigger strict scrutiny. Based on the strict scrutiny framework, race based classifications must be narrowly tailored to compelling governmental interests. Years later, the dissenting opinion in Trump v. Hawaii (2018) analogized the decision to Korematsu “based on alleged ‘dangerous stereotypes,’ ‘animus,’ and the government’s ‘unwilling[ness] to reveal its own intelligence agencies' views on the alleged security concerns’”13 In fact, Korematsu is often used as an anti-precedent, or as an example of past court failings that the current court should avoid at all costs.
While the Court claimed to have applied strict scrutiny in Korematsu, it found that the Japanese relocation camps were constitutional, concluding that the safety of American citizens was greater than the constitutional violation of racially classifying Japanese citizens. The majority opinion states that, “[t]o cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.”14 If the compelling governmental interest is American citizens’ safety, the government’s solution of interning all Japanese Americans based on their race was not narrowly tailored to that interest. There were many alternative ways to protect American citizens’ safety without racially profiling Japanese Americans and forcing them to leave their homes. Therefore, Korematsu should not have satisfied the strict scrutiny test, as the solution of relocation camps is not narrowly tailored to the compelling interest of American safety.
Another example of the misapplication of the tiers of scrutiny relates to the usage of strict scrutiny in college admission cases. Regents of the University of California v. Bakke (1978) sought to answer whether the use of racial quotas for school admissions was permissible. The Court evaluated this case using strict scrutiny because it was based on a racial classification. In applying strict scrutiny, the Justices found that while the school’s interest in diversity was compelling, strict racial quotas are not narrowly tailored toward that interest, making racial quotas impermissible.15 However, college admissions cases involving affirmative action should not trigger strict scrutiny, as the purpose of these practices is to create more equitable admissions for minority groups. The strict scrutiny framework originally specified in Carolene Products provides elevated scrutiny for “discrete and insular minorities.” White candidates for admission are not “discrete and insular minorities,” so racial classifications that slightly disadvantage them should not trigger strict scrutiny. Arguably, this is a misapplication of the strict scrutiny framework that has ultimately disserved actual “discrete and insular minorities” rather than ensuring equal protection of the law. Instead, these affirmative action cases should have merely triggered rational basis, only requiring a legitimate state interest with a rationally related classification, which the quotas in Bakke and subsequent affirmative action cases would certainly satisfy.
Below strict scrutiny is the intermediate tier of scrutiny, which almost exclusively applies to gender discrimination cases.16 The intermediate test creates further confusion about the application of the tiers of scrutiny, blurring the line between strict scrutiny and rational basis. Intermediate scrutiny requires that classifications be “substantially related” to “important governmental objectives”17 rather than narrowly tailored to compelling governmental interests (as with strict scrutiny). However, it is unclear what delineates “substantially related” from “narrowly tailored” and an “important” governmental interest from a “compelling” one. The tiered structure itself implies that intermediate scrutiny is less stringent than strict scrutiny, but this guideline’s precise meaning is confusing in application.
Cases involving gender-based classifications only recently began to trigger intermediate scrutiny, which was also created in response to a case involving gender-based classifications. Early cases such as Muller v. Oregon (1908), Goesaert v. Cleary (1948), and Hoyt v. Florida (1961) relied upon the rational basis test, which only requires a legitimate interest and rationally related classification. These cases ruled it constitutional to bar women from working over 10 hours a day because the wellbeing of women was of public interest,18 to prevent women from obtaining bartending licenses,19 and to require women to request to be on the jury because they remain the center of the home,20 respectively. Thus, applying the rational basis test to gender-based classifications allows for considerable gender discrimination, and elevated scrutiny is needed.
The shift towards an intermediate tier of scrutiny as applied to gender provides more protection. Reed v. Reed (1971) challenged the constitutionality of the Idaho Probate Code, which specified a preference for males over females in estate management. This case was the first decision holding gender discrimination violative of equal protection. The Court claimed to use rational basis, arguing that sex-based discrimination is an arbitrary classification, contending that “to give a mandatory preference” to one sex “is the very kind of arbitrary legislative choice forbidden.”21 Arguably, the estate law would likely pass true rational basis review because men probably had more experience with business and estate management at the time, making this the beginning of the shift towards intermediate scrutiny. The true introduction of the new tier of intermediate scrutiny came with the Craig v. Boren (1976) decision, which determined that a 2% statistical difference is too tenuous to justify a gender classification.22 The case established the “substantially related” to “important governmental objectives” rule, glossing the intermediate tier of scrutiny.23
After the intermediate tier of scrutiny was established in Craig v. Boren, the tier has provided greater protection against gender discrimination. This new tier was tested with the landmark case of United States v. Virginia (1996), which sought to answer the constitutionality of Virginia Military Institute’s exclusion of women in admissions. The Court found that it was unconstitutional to prevent women from admission, as it violated women’s rights afforded by the Equal Protection Clause. In the majority opinion, Justice Ruth Bader Ginsburg applied the intermediate tier of scrutiny, requiring “exceedingly persuasive justification” for excluding women in admissions, which this case did not satisfy.24
It is dubious whether there is a difference between strict scrutiny’s “compelling governmental interest” and the “exceedingly persuasive justification” Ginsburg requires in this case. Ultimately, the intermediate scrutiny framework as applied in this case results in analogous protection to what strict scrutiny would provide, which begs the question of the difference between intermediate and strict scrutiny, and why there is a delineation. It is unclear what is distinct about intermediate scrutiny and what its importance is for ensuring the best application of the Equal Protection Clause of the Fourteenth Amendment.
The application of the rational basis tier exemplifies an additional problem with the tiers of scrutiny model. Some classifications deserve heightened scrutiny yet only trigger rational basis review. The first example of this is in Washington v. Davis (1976), which determined that racially disparate impact is not enough to trigger heightened scrutiny — only the intention of discrimination meets the strict scrutiny standard.25 This case had important implications for future cases involving disparity. For example, the Supreme Court case on inequitable distribution of educational funding, San Antonio v. Texas (1973), only triggered rational basis review because of the precedent in Washington v. Davis. Additionally, this case established that the poor are not a suspect class, and that there is no constitutionally protected fundamental right to education, as either of these recognitions would trigger elevated scrutiny.26
Rational basis review may also be applied when elevated scrutiny should be used instead, such as in cases involving LGBTQ rights. Supreme Court precedent does not afford members of the LGBTQ community constitutional entitlement to heightened scrutiny under the Equal Protection Clause. Resultantly, the same level of scrutiny is applied to classifications of advertisements, as in Railway Express v. New York (1949),27 as is applied to members of the LGBTQ community. The lack of constitutional protection for the LGBTQ community, arguably a “discrete and insular minority,” is a considerable failing of the tiers of scrutiny, which are meant to apply the Equal Protection clause judiciously to ensure equal protection of constitutional rights against discrimination.
The Supreme Court ruling in Webster v. Doe (1988) exemplifies the Court’s lack of a constitutionally protected framework to prevent discrimination based on sexuality, as it only triggered rational basis. In Webster v. Doe, the Director of the CIA determined that Doe’s sexuality presented a security threat and terminated his employment.28 The Supreme Court “dodged the important, unresolved question at the heart of the case: whether homosexuals constitute a suspect class entitled to heightened judicial scrutiny.”29 Instead, the Court resorted to the rational basis test to decide this case, exhibiting a hands-off approach to discrimination based on sexuality. The Supreme Court has continuously refused to qualify members of the LGBTQ community as a suspect class deserving of heightened scrutiny. Romer v. Evans (1996) determined that Colorado’s potential amendment preventing governmental intervention in discrimination based on sexual orientation was unconstitutional.30 However, the Court did not qualify that discrimination based on sexual orientation triggers elevated scrutiny; instead, the Court struck down the law because a statute born out of animosity towards one group is not a legitimate interest, which fails even rational basis.31 This pattern continued in the decision in Lawrence v. Texas (2003), which found that a Texas law prohibiting same sex intimacy was unconstitutional. The case qualified physical intimacy as a fundamental right, triggering the Due Process Clause rather than the Equal Protection Clause, which would apply if the Court recognized members of the LGBTQ community as a suspect class.32
One could argue that even though the Court does not apply heightened scrutiny for LGBTQ identities, these precedents still afford protections. However, Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) evinces how the lack of qualification as a suspect class affects constitutional protections based on sexual orientation. In Masterpiece Cakeshop, the Court determined that it was within the rights of a cakeshop owner to refuse to serve members of the LGBTQ community based on the owner’s First Amendment rights of free speech and freedom of religion.33 If members of the LGBTQ community were qualified as a suspect class, this case would become more complicated, balancing the interests of one trigger of elevated scrutiny (First Amendment rights) with another (rights against discrimination as a suspect class). Instead, the Supreme Court was balancing one side that triggered elevated scrutiny (the First Amendment protection of speech and religions) against another side that only triggered rational basis (a member of the LGBTQ community who experienced discrimination).
Interestingly, even the landmark case protecting same-sex marriage, Obergefell v. Hodges (2016), does not qualify members of the LGBTQ community as suspect. The decision in Obergefell v. Hodges relies upon the precedent in Loving v. Virginia (1967), which identified marriage as a fundamental right.34 Therefore, because marriage is a fundamental right, everyone is entitled to it, regardless of sexual orientation. Obergefell defines four reasons why marriage is fundamental: inherently preserving individual autonomy; a union committing two individuals together; safeguarding the rights of children and the family; and as a keystone of social order.35 Therefore, Obergefell v. Hodges provides equal access to state-recognized marriage based on the evaluation of marriage as a fundamental right, not because members of the LGBTQ community deserve special protection of their rights.
The current tiers of scrutiny model does not adequately provide protections for true equal protection. In some cases, the strict scrutiny tier does not provide enough support, and in others, it is applied to classifications that should not trigger strict scrutiny. Further, intermediate scrutiny is confusingly applied in how it is delineated from strict scrutiny. Finally, and most concerningly, some groups should be afforded elevated scrutiny but only trigger the rational basis test. Thus, the tiers of scrutiny model should be rethought to apply the Equal Protection Clause more judiciously for true discrete and insular minorities, which should constitute a broader group than the Supreme Court currently recognizes. Instead of the current ambiguous tiers of scrutiny model, relying on only two tiers—strict scrutiny and rational basis—would create more clarity and ensure that all discrete and insular minorities are constitutionally protected through elevated scrutiny.
References
1 Jesse H. Choper et al., Constitutional Law: Cases, Comments and Questions (St. Paul, MN: West Academic Publishing, 2019). 392
2 Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193 (1944)
3 Johnson v. California, 336 F.3d 1117 (9th Cir. 2003)
4 Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451 (1976)
5 United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264 (1996)
6 Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148 (1982)
7 U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S. Ct. 2821 (1973)
8 Danielle Stefanucci, "Shedding Tiers: A New Framework for Equal Protection Jurisprudence," St. John's Law Review 93, no. 4 (2019): 1235-1266, 1236
9 Stefanucci, “Shedding Tiers”, 1236
10 “Armour v. Indianapolis,” Legal Information Institute (Legal Information Institute), accessed May 1, 2022, https://www.law.cornell.edu/supremecourt/text/11-161.
11 TARA LEIGH GROVE *, "SYMPOSIUM: IS THE RATIONAL BASIS TEST UNCONSTITUTIONAL?: ARTICLE: Tiers of Scrutiny in a Hierarchical Judiciary," Georgetown Journal of Law & Public Policy, 14, 475 (Summer, 2016). https://advance-lexis-com.ezp-prod1.hul.harvard.edu/api/document?collection=analytical-materials&id=urn:contentItem:5M97-RWG0-0198-G0BC-00000-00&context=1516831., 477-8.
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14 Choper, Constitutional Law: Cases, Comments and Questions, 1388.
15 University of California Regents v. Bakke, 438 U.S. 265, 98 S. Ct. 2733 (1978)
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17 Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451 (1976)
18 Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324 (1908)
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28 Timothy P. Prince, "Webster v. Doe: Toward Constitutional Protection of Gays against Governmental Discrimination," Hastings Constitutional Law Quarterly 16, no. 4 (Summer 1989): 639-656
29 Prince, “Webster v. Doe” 649.
30 “Romer v. Evans, 517 U.S. 620 (1996).” Justia Law. Accessed April 26, 2022. https://supreme.justia.com/cases/federal/us/517/620/.
31 Courtney G. Joslin, "Equal Protection and Anti-Gay Legislation: Dismantling the Legacy of Bowers v. Hardwick - Romer v. Evans, 116 S. Ct. 1620 (1996)," Harvard Civil Rights-Civil Liberties Law Review 32, no. 1 (Winter 1997): 225-248
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33 “Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n Syllabus,” Legal Information Institute (Legal Information Institute), accessed April 26, 2022, https://www.law.cornell.edu/supremecourt/text/16-111.
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