Equal Protection

prev | next

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Unlike the Fourteenth Amendment, the Fifth Amendment “contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” 1 Nevertheless, the Supreme Court has held that “[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” 2 Even before the Court reached this position, it had assumed that “discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.” 3 It appears that Chief Justice William Howard Taft first described this theory when he observed that the Due Process and Equal Protection Clauses are “associated” and that “[i]t may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. . . . [Due process] tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not withhold. Our whole system of law is predicated on the general, fundamental principle of equality of application of the law.” 4

Thus, in Bolling v. Sharpe,5 a companion case to Brown v. Board of Education,6 the Court struck down racial segregation in D.C. public schools as a violation of the Fifth Amendment’s Due Process Clause, determining that due process guarantees implicitly include a guarantee of equal protection. The Court wrote, “The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. . . . [A]s this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.” 7

In subsequent cases, the Court has applied its Fourteenth Amendment jurisprudence to federal legislation that contained classifications based on sex8 and whether a person was born to married parents,9 and that set standards of eligibility for food stamps.10 However, almost all legislation involves some degree of classification among particular categories of persons, things, or events, and, just as the Equal Protection Clause itself does not outlaw “reasonable” classifications, neither does the Due Process Clause necessarily forbid social and economic legislation that contains arbitrary line-drawing.11 Thus, for example, the Court has sustained a law imposing greater punishment for an offense involving rights of property of the United States than for a like offense involving a private person’s right of privacy.12 A veterans law that extended certain educational benefits to all veterans who had served “on active duty” and thereby excluded conscientious objectors from eligibility was held to be sustainable. The Court held that Congress could reasonably conclude that the disruption caused by military service was qualitatively and quantitatively different from that caused by alternative service, and that the educational benefits would make military service more attractive.13

Although the “federal sovereign, like the States, must govern impartially,” there may be “overriding national interests which justify selective federal legislation that would be unacceptable for an individual State.” 14 One example is the paramount federal power over immigration and naturalization, which allows the federal government to classify among categories of persons upon some grounds—alienage, naturally, but also other suspect and quasi-suspect categories15 —in ways that states cannot.16

1: Detroit Bank v. United States, 317 U.S. 329, 337 (1943); Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941).
2: Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214–18 (1995).
3: Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937). See also Currin v. Wallace, 306 U.S. 1, 13–14 (1939).
4: Truax v. Corrigan, 257 U.S. 312, 331 (1921). See also Hirabayashi v. United States, 320 U.S. 81, 100 (1943).
5: 347 U.S. 497, 499–500 (1954).
6: 347 U.S. 483 (1954). With respect to race discrimination, the Court had earlier utilized its supervisory authority over the lower federal courts and its power to construe statutes to reach results that the Court might have grounded in the Fourteenth Amendment’s Equal Protection Clause if the cases had come from the states. E.g., Hurd v. Hodge, 334 U.S. 24 (1948); Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944); Railroad Trainmen v. Howard, 343 U.S. 768 (1952). See also Thiel v. Southern Pacific Co., 328 U.S. 217 (1946).
7: Bolling, 347 U.S. at 499. See also United States v. Windsor, 570 U.S. 744, 769–70 (2013) (holding that Section 3 of the Defense of Marriage Act—a provision that restricted federal recognition of same-sex marriages by specifying that, for any federal statute, ruling, regulation, or interpretation by an administrative agency, the word “spouse” would mean a husband or wife of the opposite sex—violated the Fifth Amendment’s due process and equal protection components).
8: Frontiero v. Richardson, 411 U.S. 677 (1973); Califano v. Goldfarb, 430 U.S. 199 (1977). But see Rostker v. Goldberg, 453 U.S. 57 (1981); Califano v. Jobst, 434 U.S. 47 (1977).
9: Compare Jiminez v. Weinberger, 417 U.S. 628 (1974), with Mathews v. Lucas, 427 U.S. 495 (1976).
10: Dep’t of Agriculture v. Murry, 413 U.S. 508 (1973). See also Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973).
11: Richardson v. Belcher, 404 U.S. 78, 81 (1971); FCC v. Beach Commc’ns, 508 U.S. 307 (1993) (exemption from cable TV regulation of facilities that serve only dwelling units under common ownership); Lyng v. Castillo, 477 U.S. 635 (1986) (Food Stamp Act limitation of benefits to households of related persons who prepare meals together). With respect to courts and criminal legislation, see Hurtado v. United States, 410 U.S. 578 (1973); Marshall v. United States, 414 U.S. 417 (1974); United States v. MacCollom, 426 U.S. 317 (1976).
12: Hill v. United States ex rel. Weiner, 300 U.S. 105, 109 (1937). See also District of Columbia v. Brooke, 214 U.S. 138 (1909); Panama R.R. v. Johnson, 264 U.S. 375 (1924); Detroit Bank v. United States, 317 U.S. 329 (1943).
13: Johnson v. Robison, 415 U.S. 361 (1974). See also Schlesinger v. Ballard, 419 U.S. 498 (1975) (military law that classified men more adversely than women deemed rational because it had the effect of compensating for prior discrimination against women). Wayte v. United States, 470 U.S. 598 (1985) (selective prosecution of persons who turned themselves in or were reported by others as having failed to register for the draft does not deny equal protection because there was no showing that these men were selected for prosecution because of their protest activities). See also Bowen v. Owens, 476 U.S. 340, 341, 350 (1986) (Social Security Act provision that authorized payment of survivor’s benefits to a “widowed spouse who remarried after age 60, but not to a similarly situated divorced widowed spouse” does not deny equal protection); Califano v. Jobst, 434 U.S. 47, 48–52 (1977) (sustaining a Social Security Act provision that revoked “disabled dependents’ benefits” of any person who married unless that person married someone who was also entitled to receive disabled dependents’ benefits).
14: Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). See also United States v. Vaello-Madero, No. 20-303, slip op. at 1 (U.S. Apr. 21, 2022) (holding that the Fifth Amendment’s equal protection component did not require Congress to extend Supplemental Security Income benefits to residents of Puerto Rico to the same extent as it made those benefits available to residents of the states).
15: See, e.g., Reno v. Flores, 507 U.S. 292, 315 (1993) (upholding regulations generally providing for the release of detained alien juveniles only to parents, close relatives, or legal guardians during pendency of deportation proceedings but not exclusion proceedings against a Fifth Amendment equal protection challenge).
16: For example, 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, 137 S. Ct. 1678, 1693–94 (2017); Sessions v. Morales-Santana, No. 15-1191, slip op. at 2 (2017) (distinguishing between immigration and citizenship contexts, and applying heightened scrutiny to hold that a derivative citizenship statute that discriminated by gender violated equal protection principles).