Constitutional Law I Lecture Four: Equal Protection – Scrutiny Standards and Government Classifications

Judicial scrutiny, vital for U.S. constitutional law, assesses if laws comply with the Fourteenth Amendment's Equal Protection and Due Process Clauses. It has three levels: Rational Basis Review (lenient, for non-fundamental rights), Intermediate Scrutiny (mid-tier, for quasi-suspect classifications like gender), and Strict Scrutiny (highest, for fundamental rights or suspect classifications like race, often "fatal in fact").

The Equal Protection Clause, requiring similar treatment for similarly situated people, has evolved, notably expanding to corporations. However, "pluralism anxiety" has led to limitations on traditional, group-based civil rights by restricting heightened scrutiny classifications, foreclosing disparate impact claims without discriminatory intent, and curbing congressional enforcement powers under Section 5.

Despite these limitations, the Court has shifted to "liberty-based dignity claims," using due process liberty analysis to protect subordinated groups, as seen in cases like Lawrence v. Texas (sodomy laws) and Roe v. Wade (abortion rights). This approach often frames rights universally, circumventing traditional scrutiny bars and Section 5 limitations.

Critics argue the scrutiny framework has ambiguous boundaries, allows too much judicial discretion, is overly deferential in rational basis, and struggles with modern issues and intersectional discrimination.

U.S. v. Skrmetti, addressing gender-affirming care for minors, is a pivotal case that will define the application of the Equal Protection Clause to transgender issues. Arguments revolve around whether the law discriminates on sex, age, or transgender status, and the state's justification for the ban. The outcome, expected in June 2025, will significantly impact equal protection jurisprudence.

In conclusion, the scrutiny framework, while foundational, faces challenges in adapting to societal changes. The shift to liberty-based dignity claims offers a new avenue for protecting rights, but cases like Skrmetti highlight ongoing debates and the framework's future.