Editing Equal Protection Clause (section)

==Tiered scrutiny==
Despite the undoubted importance of ''Brown'', much of modern equal protection jurisprudence originated in other cases, though not everyone agrees about ''which'' other cases. Many scholars assert that the opinion of Justice [[Harlan Stone]] in ''[[United States v. Carolene Products Co.]]'' (1938)<ref>304 U.S. 144, 152 n.4 (1938). For a theory of judicial review based on Stone's footnote, see Ely, John Hart (1981). ''Democracy and Distrust''. Cambridge, MA: Harvard University Press. {{ISBN|0-674-19637-6}}.</ref> contained a footnote that was a critical turning point for equal protection jurisprudence,<ref name=Goldstein>Goldstein, Leslie. "[https://www.law.upenn.edu/journals/conlaw/articles/volume4/issue2/Goldstein4U.Pa.J.Const.L.372(2002).pdf Between the Tiers: The New(est) Equal Protection and Bush v. Gore] {{Webarchive|url=https://web.archive.org/web/20160304202127/https://www.law.upenn.edu/journals/conlaw/articles/volume4/issue2/Goldstein4U.Pa.J.Const.L.372(2002).pdf |date=2016-03-04 }}", ''University of Pennsylvania Journal of Constitutional Law'', Vol. 4, p. 372 (2002) .</ref> but that assertion is disputed.<ref>Farber, Daniel and Frickey, Philip. "[http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2542&context=facpubs Is Carolene Products Dead--Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation]", ''California Law Review'', Vol. 79, p. 685 (1991). Farber and Frickey point out that "only Chief Justice Hughes, Justice Brandeis, and Justice Roberts joined Justice Stone's footnote", and in any event "It is simply a myth ... that the process theory of footnote four in Carolene Products is, or ever has been, the primary justification for invalidating laws embodying prejudice against racial minorities."</ref>

Whatever its precise origins, the basic idea of the modern approach is that more judicial scrutiny is triggered by purported discrimination that involves "[[fundamental rights]]" (such as the right to procreation), and similarly more judicial scrutiny is also triggered if the purported victim of discrimination has been targeted because he or she belongs to a "[[suspect classification]]" (such as a single racial group). This modern doctrine was pioneered in ''[[Skinner v. Oklahoma]]'' (1942), which involved depriving certain criminals of the fundamental right to procreate:<ref>''Skinner v. Oklahoma'', 316 U.S. 535 (1942). Sometimes the "suspect" classification strand of the modern doctrine is attributed to ''[[Korematsu v. United States]]'' (1944), but ''Korematsu'' did not involve the Fourteenth Amendment, and moreover it came later than the ''Skinner'' opinion (which clearly stated that both deprivation of fundamental rights as well as oppression of a particular race or nationality were invidious).</ref>

<blockquote>When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.</blockquote>

Until 1976, the Supreme Court usually ended up dealing with discrimination by using one of two possible levels of scrutiny: what has come to be called "[[strict scrutiny]]" (when a suspect class or fundamental right is involved), or instead the more lenient "[[rational basis review]]". Strict scrutiny means that a challenged statute must be "narrowly tailored" to serve a "compelling" government interest, and must not have a "less restrictive" alternative. In contrast, rational basis scrutiny merely requires that a challenged statute be "reasonably related" to a "legitimate" government interest.

However, in the 1976 case of ''[[Craig v. Boren]]'', the Court added another tier of scrutiny, called "[[intermediate scrutiny]]", regarding gender discrimination. The Court may have added other tiers too, such as "enhanced rational basis" scrutiny,<ref>See ''[[City of Cleburne v. Cleburne Living Center, Inc.]]'' (1985)</ref> and "exceedingly persuasive basis" scrutiny.<ref>See ''[[United States v. Virginia]]'' (1996).</ref>

All of this is known as "tiered" scrutiny, and it has had many critics, including Justice [[Thurgood Marshall]] who argued for a "spectrum of standards in reviewing discrimination", instead of discrete tiers.<ref name=Fleming /> Justice [[John Paul Stevens]] argued for only one level of scrutiny, given that "there is only one Equal Protection Clause".<ref name=Fleming>Fleming, James. "[http://ir.lawnet.fordham.edu/flr/vol74/iss4/26 'There is Only One Equal Protection Clause': An Appreciation of Justice Stevens's Equal Protection Jurisprudence]", ''Fordham Law Review'', Vol. 74, p. 2301, 2306 (2006).</ref> The whole tiered strategy developed by the Court is meant to reconcile the principle of equal protection with the reality that most laws necessarily discriminate in some way.<ref>See ''[[Romer v. Evans]]'', 517 U.S. 620, 631 (1996): "the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons."</ref>

Choosing the standard of scrutiny can determine the outcome of a case, and the strict scrutiny standard is often described as "strict in theory and fatal in fact".<ref>Curry, James et al. ''Constitutional Government: The American Experience'', p. 282 (Kendall Hunt 2003) (attributing the phrase to Gerald Gunther).</ref> In order to select the correct level of scrutiny, Justice [[Antonin Scalia]] urged the Court to identify rights as "fundamental" or identify classes as "suspect" by analyzing what was understood when the Equal Protection Clause was adopted, instead of based upon more subjective factors.<ref>Domino, John. ''Civil Rights & Liberties in the 21st Century'', pp. 337-338 (Pearson 2009).</ref>