By David E. Ortman

The courts in Oregon, when ruling on their Privileges or Immunities clause (Oregon Constitution Article I, ¤ 20), the source clause for our own clause, hold that homosexuals are a true class with well defined characteristics beyond those drawn by the statute in question and that homosexuals are a suspect class of socially recognized citizens subject to adverse social and political stereotyping. Meeting the tests described therein, they ruled that homosexuals constitute a suspect class. Tanner v. OHSU, 157 Or. App. 502, 520-524, 971 P.2nd 435 (1998).

Castle, et. al. v. State of Washington, Thurston County Superior Court, (No. 04-2-00614-4 Sept. 7, 2004) (emphasis added).

Introduction

Imagine that you work for the Washington State Patrol (WSP). When you turn 50, the WSP requires that you retire. You read in the U.S. Constitution about the Fourteenth Amendment’s guarantee of equal protection under the law: “[n]o State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

The Equal Protection Clause (EPC) stops the government from making “illegal” classifications. In other words, similarly situated people should be treated similarly. Dissimilar people should not be treated similarly. The WSP has made a classification. Certain patrol officers are under 50 and can continue to work. Certain patrol officers are 50 and must retire.

Isn’t the state denying you equal protection of the laws? No. The courts will uphold a state legislative classification against equal protection attack so long as the classification scheme bears a rational relation to some legitimate legislative objective as in Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976).1 In summary, the courts have decided that this type of classification by age has a rational basis and is not a violation of the EPC.

Suspect Classifications

Classifications or restrictions that were “suspect” were identified as early as 1944.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.

Toyosaburo Korematsu v. U.S., 323 U.S. 216, 65 S.Ct. 193 (1944).

By 1969, Supreme Court Justice Har-lan was referencing “suspect” criteria:

In upholding the equal protection argument, the Court has applied an equal protection doctrine of relatively recent vintage: the rule that statutory classifications which either are based upon certain ‘suspect’ criteria or affect ‘fundamental rights’ will be held to deny equal protection unless justified by a ‘compelling’ governmental interest.

Shapiro v. Thompson, 394 U.S. 618, 658, 89 S. Ct. 1322 (1969) (Harlan dissent).

For the reasons stated in my dissenting opinion in Harper v. Virginia Bd. of Elections, É I do not consider wealth a ‘suspect’ statutory criterion.

Shapiro, 394 U.S. at 659.

A week after this decision, in McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802, 807, 89 S.Ct. 1404 (1969), Chief Justice Warren held, “[A] careful examination on our part is especially warranted, where lines are drawn on the basis of wealth or race, É two factors which would independently render a classification highly suspect and thereby demand a more exacting judicial scrutiny.”

The phrase “suspect classification” appears to have first been used by the Federal Courts in an August 1969 Fifth Circuit dissent by Judge Rives:

Viewing this suspect classification in light of the fact situation where access to the court in a case involving personal liberty is at stake, I would hold that Florida’s appellate rules have been applied to appellants so as to deny them the equal protection of the laws

Brown v. Chastain, 416 F.2d 1012, 1028 (5th Cir. 1969). (citations omitted, emphasis added).2

In 1970, in a concurring opinion, Supreme Court Justice Harlan referenced “slogans and ringing phrases, such as ‘suspect’ classification.” Williams v. Illinois, 399 U.S. 235, 260, 90 S.Ct. 2018 (1970). Slogan or not, it is the state’s classification that is “suspect.”

Suspect Classifications in Washington State

This timeline is consistent with the Washington state courts. Justice Finley wrote in a concurring opinion:

The other standard of review, requiring a ‘very heavy burden of justification,’ (i.e., the showing of a compelling state interest) is imposed either when a ‘suspect’ classification such as race is utilized or when the interest protected is as fundamental to the democratic process as voting or interstate travel.

Thurston v. Greco, 78 Wn.2d 424, 432-33, 474 P.2d 881 (1970).

In Hanson v. Hutt, 83 Wn. 2d 195, 199, 517 P.2d 599 (1973), the Washing-ton Supreme Court referenced Sail’er Inn, Inc., v. Kirby, 5 Cal. 3d 1, 18-20, 95 Cal. Rptr. 329, 340 (1971), where the California Supreme Court declared sex to be a “suspect classification.” Sail’er Inn, Inc., in turn cited Westbrook v. Mihaly, 2 Cal.3d 765, 784 (1970), which also referenced “suspect classifications.”

Suspect “Suspect Class”

So how did the courts morph into shifting the attention, not on the state’s classification, but on a “suspect class?” The question is, do we want the courts to treat people as a “suspect class,” or do we want the courts to treat a government requirement as a “suspect classification?” And does it make a difference, especially if we are referring to blacks, gays and other minorities as “suspect classes?”

The 14th Amendment was written to secure free and equal treatment for ex-slaves. “[T]he historical fact [is] that the central purpose of the Fourteenth Amend-ment was to eliminate racial discrimination emanating from official sources in the States.” McLaughlin v. State of Fla., 379 U.S. 184, 192, 85 S.Ct. 283, 288 (1964).3

Suppose a statutory classification disfavors a group that has been the object of discrimination and prejudice. If the government can produce a rationally related, particularly, a mere rationality, should the courts give extreme deference to the legislature’s right to define its objectives? Or should the Court be alert to a disguised attempt to continue discrimination and prejudice against such a group?

For example, an ordinance neutral on its face where laundry permits were given to non-Chinese applicants, but not to Chinese applicants, was found to be in violation of the EPC. Yick Wo. v. Hopkins, 118 U.S. 356 (1886). In U.S. v. Carolene Products Co., 304 U.S. 144 (1938), the Court warned in a footnote: “Prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Over time, the term “suspect classification” was used to indicate the passage of a statute, ordinance or regulation that triggered some suspicion that something other than mere rationality was afoot.

In 1952, the Supreme Court of Texas in Hernandez v. State of Tex., 251 S.W. 2d 531, held that the 14th Amendment only applied to “the White race and the Negro race.” The U.S. Supreme Court reversed. Chief Justice Warren explained:

Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amend-ment is not directed solely against discrimination due to a ‘two-class theory’--that is, based upon differences between ‘white’ and Negro.

Hernandez v. State of Tex., 74 S.Ct. 667, 670 (1954).

Chief Justice Warren’s language was clear. Is there a “distinct class” (i.e., group) that needs court protection? Laws that single out a group for different treatment not based on some reasonable classification violate the 14th amendment. [Note that discrimination based on “reasonable classification” would be held constitutional.] This decision encompassed national origin (Mexican-Americans) as well as blacks, Asians, and other minorities that have clear racial features as coming within the Court’s purview. The Court used the term, “separate class,” (671, 479) “distinct class,” (670, 478) “delineated class” (671, 480) and “certain class” (672, 481) in discussing whether Mexican-Americans made up such a group (671). The term “suspect” or “suspect class” was not used.

In Muniz v. Beto, 434 F.2d 697, 701 (5th Cir. 1970), the Court of Appeals cited Hernandez in discussing discrimination in excluding Mexican-Americans from grand juries. The court did not use the term “suspect” or “suspect class.”

Suspect Class = Criminals

The term “Suspect class” appears in a 1955 concurring decision by Justice William O. Douglas in quite another context:

Dr. Peters was condemned by faceless informers, some of whom were not known even to the Board that condemned him. Some of these informers were not even under oath. None of them had to submit to cross-examination. None had to face Dr. Peters. So far as we or the Board know, they may be psychopaths or venal people, like Titus Oates, who revel in being informers. They may bear old grudges. Under cross-examination their stories might disappear like bubbles. Their whispered confidences might turn out to be yarns conceived by twisted minds or by people who, though sincere, have poor faculties of observation and memory.

Confrontation and cross-examination under oath are essential, if the American ideal of due process is to remain a vital force in our public life. We deal here with the reputation of men and their right to work--things more precious than property itself. We have here a system where government with all its power and authority condemns a man to a suspect class and the outer darkness, without the rudiments of a fair trial. The practice of using faceless informers has apparently spread through a vast domain. It is used not only to get rid of employees in the Government, but also employees who work for private firms having contracts with the Government (emphasis added).

Peters v. Hobby, 349 U.S. 331, 3352-53, 75 S.Ct. 790 (1955) (concurring decision). Here “suspect class” is a derogatory term.

Jump to the 1970s. In California v. Byers, 402 U.S. 424, 91 S.Ct. 1535 (1971) (driver of car required to provide information in non-criminal car accident case), both Chief Justice Burger (at 430, 1539) and Justice Black (dissenting) (at 461, 1554) discussed compliance with statutory disclosure requirements and referenced a “‘highly selective group inherently suspect of criminal activities.”

Chief Justice Burger specifically identified gamblers as a suspect group of criminals: “Largely because of these pervasive criminal prohibitions, gamblers were considered by the Court to be ‘a highly selective group inherently suspect of criminal activities.’” (citing Marchetti v. United States, 390 U.S. 39, 61, 88 S.Ct. 697, 709 (1968)).

Justice Harlan, in his concurring opinion, used the term “inherently-suspect-class,” apparently for the first time in a Supreme Court decision:

A judicial tribunal whose position with respect to the elaboration of constitutional doctrine is subordinate to that of this Court certainly cannot be faulted for reading these opinions as indicating that the ‘inherently-suspect-class’ factor is relevant only as an indicium of genuine incriminating risk as assessed from the individual’s point of view.

Byers, 402 U.S. at 438. Justice Harlan referenced a series of decisions he authored in which “suspect groups” referred to criminals: “They are unmistakably persons ‘inherently suspect of criminal activities.’” Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199 [1965]” Haynes v. U.S., 390 U.S. 85, 96, 88 S.Ct. 722, 730 (1968) (J. Harlan decision); “We further recognized that the occupational tax was not imposed in ‘an essentially non-criminal and regulatory area . . ., 390 U.S., at 57, 88 S.Ct., at 707, but was ‘directed to a selective group’ inherently suspect of criminal activities.’’ Leary v. U.S. 395 U.S. 6, 13, 89 S.Ct. 1532, 1536 (1969) (J. Harlan decision).

So, beginning at least with Justice Douglas in 1955 and continuing through Justice Harlan’s decisions of 1965-69 on self-incrimination in non-criminal areas, a “suspect class” was one suspected of criminal activities. Justice Harlan exited the Supreme Court in 1971.

After Byers was argued, but before it was decided, the Court heard arguments in Graham v. Richardson, 403 U.S. 365, 371-72, 91 S.Ct. 1848, 1852 (1971) (classifications based on alien residency violate EPC). Because of the Court’s identification of “suspect classes” with criminal activity, Justice Blackmun was careful in Graham to identify the classification (not the class) as “suspect:” “[T]he Court’s decisions have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.” (at 371-72, 1852) “The classifications involved in the instant cases, on the other hand, are inherently suspect and are therefore subject to strict judicial scrutiny whether or not a fundamental right is impaired.”(at 376, 1854)

The Graham decision holds that “Aliens as a class are a prime example of a ‘discrete and insular’ minority (see United States v. Carolene Products Co., 304 U.S. 144, 152--153, n. 4, 58 S.Ct. 778, 783--784, 82 L.Ed. 1234 (1938) for whom such heightened judicial solicitude is appropriate.” (at 372, 1852). This confirms that through 1971 the courts are clear: classification is suspect, not the minority group or class.

Justice Powell Gets it Wrong

At this point, the Court has identified “suspect groups” as criminals and “suspect classifications” of certain “classes” as violating the EPC.

In Sugarman v. Dougall, 413, U.S. 634, 93 S.Ct. 2842 (1973), Justice Blackmun again held that alienage is a suspect classification and there is no mention of a “suspect class.” However, in an EPC case argued three months before Sugarman, Justice Powell shifted the focus from the whether the government was imposing a discriminatory suspect classification to whether the government had “disadvantage[d] . . .some suspect class, thereby requiring strict judicial scrutiny.” San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 1288 (1973). (“We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny.”).

The underlying decision, Rodriguez v. San Antonio Independent School Dist., 337 F.Supp. 280 (W.D.Tex. 1971), held that the Texas system of financing education was discriminatory on the basis of wealth. There was no mention of “suspect class.” The Supreme Court reversed holding that strict scrutiny was not required:

Appellees’ comparative-discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor, and whet-her a class of this size and diversity could ever claim the special protection accorded ‘suspect’ classes. These questions need not be addressed in this case, however, since appellees’ proof fails to support their allegations or the District Court’s conclusions.

The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. (emphasis added).

Rodriguez, 411 U.S. at 26, 28.

Justice Stewart’s concurring opinion got it right, pointing out that under the EPC, the “presumption of constitutional validity disappears when a State has enacted legislation whose purpose or effect is to create classes based upon criteria that, in a constitutional sense, are inherently ‘suspect.’ Because of the historic purpose of the Fourteenth Amendment, the prime example of such a ‘suspect’ classification is one that is based upon race.” (Id. at 61).4

Was “Suspect Class” Self-Inflicted?

The Washington Supreme Court first used the term “suspect class” in Northshore School Dist. No. 417 v. Kinnear, 84 Wn.2d 685, 726, 530 P.2d 178 (1974), and specifically cited Rodriguez. However, Justice Stafford’s dissent specifically attributed the term “suspect class” to petitioners:

First, petitioners allege that, within the sphere of the federal constitution, the foregoing financing scheme operates to the disadvantage of suspect classes and interferes with the exercise of fundamental rights and liberties. It is argued that the system violates the Equal Protec-tion Clause of the Fourteenth Amendment.

Northshore, 84 Wn. 2d at 750. (emphasis added).

In 1975, the U.S. District Court of Pennsylvania cited Rodriguez as the source of “suspect class” and also claimed that plaintiffs used this reference:

Thirdly, plaintiffs argue that we should strictly scrutinize their claims because retarded children are a suspect class. Reviewing the characteristics of a suspect class as the Supreme Court has identified them, we find a certain immediate appeal to plaintiffs’ argument. The Court in Rodriguez, for example, set forth the following criteria for determining what constitutes a suspect class: (a) class . . . saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. 411 U.S. at 28, 93 S.Ct. at 1294. Such a test could certainly be read to include retarded children.

Fialkowski v. Shapp, 405 F.Supp. 946, 959 (D.C. Pa.) (1975) (emphasis added).

By 1976, in a per curiam decision, Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562 (1976), the Supreme Court had firmly identified the subjects of equal protection clause violations as a “suspect class:”

We need state only briefly our reasons for agreeing that strict scrutiny is not the proper test for determining whether the mandatory retirement provision denies appellee equal protection. San Antonio School District v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 1287, 36 L.Ed.2d 16 (1973), reaffirmed that equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Mandatory retirement at age 50 under the Massachusetts statute involves neither situation.

Massachusetts Bd. of Retirement, 427 U.S. at 312-13 (footnotes omitted). So to return to our original example, the Supreme Court does not consider a mandatory retirement age to disadvantage a “suspect class.”

Summary

The term “suspect class” once applied to criminals, was attached to blacks by Justice Powell in 1973. However, by 1975, petitioners seeking to invoke the equal protection clause had themselves accepted and slipped into referring to suspect governmental classifications as impacts on “suspect classes.” Is it too late to put the “suspect class” genie back in the bottle? n

1 In McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101 (1961), the Court noted:

Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

2 Action by mother seeking mandatory injunction requiring state to provide free transcript for civil appeal from state court order involving claim that denial of transcript violated her constitutional rights.

3 Supreme Court Justice Stephen Field presided over a series of railroad cases in which the Supreme Court came to the conclusion that an “equal” purpose of the 14th Amendment was to protect the rights of corporations.