Volume 101

What is the Purpose? Affirmative Action, DOMA, and the Untenable Tiered Framework for Equal Protection Review

by Sarah Erickson Muschko

This paper argues that the Court’s current approach to equal protection, which treats the tiered framework as a rigid taxonomy rather than a set of guiding principles, is untenable. As this paper seeks to illustrate, the Court’s current approach has skewed the Court’s analysis, rendering the substantive nature of the equal protection guarantee unclear, and it has failed in its goal of ensuring a proper role for the Court in a democratic system of government.

Instead, the Court should embrace a unitary standard of equal protection review, as has been long-advocated by Justices Marshall and Stevens, as well as by numerous scholarly commentators. Under this standard, the Court would apply the same analysis it has already applied under the various tiers of review, but it would do so in a transparent manner. This unitary standard looks to the claimed injury, the government’s claimed interest, and the fit between the government’s interest and the classification at issue. Under this approach, the Court can give coherent guidance to lower courts that are tasked with reviewing the vast majority of equal protection challenges, as well as to legislatures and public institutions tasked with formulating government policies.

This approach requires rejection of the colorblind theory. Because it views purpose as irrelevant and applies the means necessary to preserve the status quo, the colorblind approach is devoid of substance and inconsistent with the original intent behind the Equal Protection Clause. It leaves the government free to insulate its laws from judicial review simply by omitting reference to a suspect classification, while precluding the government from adopting measures to remedy bias against groups who have undisputedly suffered a long history of state-sanctioned discrimination.

Continue reading Beyond Individual Status: The Clear Statement Rule and the Scope of the AUMF Detention Authority in the United States.