Three Tiers of Scrutiny and Constitution

When laws get enacted there are sometimes disadvantages to one group as opposed to another. The Equal Protection Clause of the Fourteenth Amendment prohibits states from denying any person within its jurisdiction the equal protection of the laws. SCOTUS has developed a three-tiered approach to analysis under the Equal Protection Clause to help treat individuals the same if the circumstances of the case(s) are similar. The upper tier rights require strict scrutiny, the middle tier rights require intermediate scrutiny and the lower tier rights require the rational basis or minimum scrutiny.

Upper tier cases involve preferred rights, such as an individual’s first amendment rights (ie. freedom of speech). This means the government will be under strict scrutiny of the court and they can only infringe on those right if they can demonstrate a compelling state interest that cannot be achieved by less restrictive means. Freedom of speech and the right to express oneself is one of the most important rights we have in America. In the case of Texas v. Johnson, 491 U.S. 397 (1989), Mr. Johnson was charged with violating the state law which prohibited vandalizing respected items, in this case the American Flag, which he was convicted and sentenced to a year in jail. Mr. Johnson appealed and Texas stated its interests were more important than Johnson’s symbolic speech rights since it wanted to preserve the flag as a symbol of national unity and it wanted to maintain order. The criminal appellate court overturned the conviction stating the state interests were not sufficient to violate his first amendment rights. Texas asked the United States Supreme Court to review the overturning of the conviction. The Supreme Court could not find sufficient evidence for flag to be the exception and therefore protected from symbolic freedom of speech. The Court specifically stated, "We have not recognized an exception to [bedrock First Amendment principles] even where our flag has been involved...There is, moreover, no indication -either in the text of the Constitution or in our cases interpreting it- that a separate juridical category exists for the American flag alone...We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment."

Middle-tier scrutiny only requires “the government must show that the challenged classification serves an important state interest and the classification is at least substantially related to serving that interest.”
Quasi-suspect classification concerning a persons gender or illegitimacy usually have subject to intermediate scrutiny. The courts are more likely to be uphold the discriminatory law if it can be proven that it is based on fact-based, real biological differences between the genders as opposed to stereotypes of the genders. In the case of Mississippi University for Woman v. Hogan, 458 U.S. 718 (1982), Mr. Logan filed a lawsuit when he was denied admission based on his gender. The District ruled in favor of the University, saying that maintenance of the University single-sex school bears a rational relationship to the Mississippi’s legitimate interest “in providing the greatest practical ranger of educational opportunities for its female population.” The Court of Appeals for the Fifth Circuit reversed under that grounds it was discriminatory admission policy in not allowing qualified male applicants. The case was appealed to the Supreme Court were the Court in a 5-4 decision held “The policy of petitioner Mississippi University for Women (MUW), a state-supported university which has from its inception limited its enrollment to women, of denying otherwise qualified males (such as respondent) the right to enroll for credit in its School of Nursing violates the Equal Protection Clause of the Fourteenth Amendment.”

Unlike the other tiers, when dealing with the lower-tier rights “the government need only show that the challenged classification is rationally related to serving a legitimate state interest.” This classification generally includes innocent children of illegal aliens, homosexuals and disadvantage mentally retarded people. Romer v. Evans, 517 U.S. 620 (1996) was one of the first case in which the Court found a law that disadvantaged a person based on the sexual orientation. In a 6-3 decision, the Court stated that Amendment two separates homosexuals to a class solely and taking away the legal protection arising from discrimination. Any law that seeks to make it more difficult for one group of citizens from seeking assistance from the government than another is a denial of Equal Protection of the laws, which cannot pass even the rational basis review. The dissent stated that “Amendment 2 is a modest attempt by seemingly tolerant Coloradans to preserve the traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” Justice Scalia relied on the reasoning used in Bowers v. Hardwich, 478 U.S. 186 (1986) where the Court ruled that laws outlawing sodomy are not unconstitutional. This reasoning was weakened when Bowers was overruled by Lawrence v. Texas, 539 U.S. 558 (2003). In a 6-3 ruling, the Court struck down the sodomy law in Texas, as well as thirteen other states, making same-sex sexual activity legal in all states and territories in the United States. It was held that intimate consensual sexual contact was protected liberty provided by the Fourteenth Amendment under the Due Process Clause.

In conclusion, courts have been moving away from the three tier approach to review and I believe rightfully so. Although there is a good reason for different levels of scrutiny, I am not sure that it is applied equally to all the groups that can and are discriminated against. It should be determined on a case by case manner since times have changed and the cases that appear before the courts. I do not believe that the mentally disabled and innocent children of illegal aliens should be given less or unequal protection than women from the government. Both groups are already at a disadvantage and rely on others to look out for their best interest. They cannot do so on their own and they are fundamentally an easy target to take advantage. When dealing with the Court system there is always going to be a winner and a loser.

Resource(s):

FindLaw | Cases and Codes. (n.d.).FindLaw: Cases and Codes. Retrieved March 4, 2012, from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=458&invol=718

Free Speech Politics: Equal Protection Clause: Introduction. (n.d.). Free Speech Politics. Retrieved March 4, 2012, from http://freespeechpolitics.blogspot.com/2007/04/equal-protection-clause-introduct...

LAWRENCE V. TEXAS. (n.d.). LII | LII / Legal Information Institute. Retrieved March 3, 2012, from http://www.law.cornell.edu/supct/html/02-102.ZS.html
Levels of Scrutiny Under the Equal Protection Clause. (n.d.). UMKC School of Law. Retrieved March 4, 2012, from http://law2.umkc.edu/faculty/projects/ft

Romer v. Evans - Slider. (n.d.). Slider Encyclopedia: Encyclopaedia . Retrieved March 3, 2012, from http://enc.slider.com/Enc/Romer_v._Evan