UNBIASED - Unbiased University: The Evolution of Equal Protection

Episode Date: March 12, 2026

UNBIASED University is in session! While Jordan is on maternity leave, she’s breaking down the most critical aspects of the United States government — the Constitution, the Bill of Rights, the three branches of the federal government, presidential elections, the evolution of political parties, and more. In this episode of UNBIASED Politics, we examine the evolution of the Equal Protection Clause and how it became one of the most powerful tools in constitutional law. Originally adopted as part of the Fourteenth Amendment after the Civil War, equal protection was intended to safeguard newly freed enslaved people from discriminatory state laws. But over time, its reach expanded far beyond its original context. We trace how the Supreme Court moved from upholding segregation to striking it down, how the modern system of judicial scrutiny developed, and how courts today evaluate laws that treat groups differently. From race and gender classifications to broader questions about fairness and government power, this episode provides a clear, nonpartisan look at how the meaning of equal protection has evolved and why it continues to shape some of the most significant legal debates in the country. Intro (0:00) The Basics of Equal Protection (3:18) Suspect and Quasi-Suspect Classes; Levels of Judicial Review (7:02) Fundamental Rights and Judicial Review (~20:52) Discriminatory Impact vs. Discriminatory Intent (~23:08) Piecing Everything Together (~27:28) Most Notable Equal Protection Cases at the Supreme Court (~29:08) SUBSCRIBE TO JORDAN'S ⁠⁠FREE NEWSLETTER⁠⁠. ⁠⁠Watch⁠⁠ this episode on YouTube. Follow Jordan on ⁠⁠Instagram⁠⁠ and ⁠⁠TikTok⁠⁠. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased Politics and to the Unbiased University series. In today's episode, we are going to be covering the evolution of equal protection. So we'll cover the basics of equal protection. And then we'll dive into the Supreme Court because as we've talked about in many episodes now, the Supreme Court plays a major role in interpreting the text of the Constitution. And so what the equal protection means today is all because of the Supreme Court, pretty much. So we'll talk about how the Supreme Court went from allowing segregation to striking it down, to developing the modern system of judicial scrutiny when it comes to determining when

government classifications are constitutional and when they violate the Constitution. There's a lot to talk about as far as equal protection goes. When most people hear the phrase equal protection, they think it just, you know, simply means the government has to treat everyone the same. But constitutionally speaking, it's actually a lot more complicated than that. There's a lot more nuance to it than just that. The Eco Protection Clause has evolved significantly over time. You know, it's gone from a post-Civil war safeguard that was designed to protect formerly enslaved people into quite literally one of the most powerful constitutional tools that is used today to challenge all.

kinds of discrimination. So by the end of this episode, you'll understand not only how equal protection law has developed, but also how courts today decide whether a law passes constitutional review when it comes to equal protection challenges. So we'll talk about a lot. Now, up until this point, we've covered the United States Constitution. We've covered the first 10 amendments to the Constitution, otherwise known as the Bill of Rights. We covered in the last episode separation of church and state and due process in pretty significant detail. So if you have to, haven't yet listened to those episodes, I highly recommend doing so before you listen to this one. It's not a requirement, but at least those first few episodes, especially the first two,

will kind of give you some important context for today's episode. As a reminder, this series is designed to function like a condensed law school education. So I want you to imagine that every time you are tuning out into one of these episodes, you are sitting down in a law school class with me as your professor. And in each class, we'll cover a different topic. We'll talk about various cases and laws that have shaped those topics. And it's, you know, very informative, but at the same time, it's also condensed, right? So just keep in mind, as you listen to these episodes, we can't possibly cover everything there is to know about all of these topics.

But I'm doing my best to, you know, get you all of the information I think is most important to know. If you've ever wanted to go to law school, if you ever considered going to law school, you are going to absolutely love this series. I hope those of you that have been tuning in already love it. by the end of it, I like to say you'll have obtained your imaginary degree from unbiased university, which means that once I come back from maternity leave and I'm back to reporting on current events, you will be fully prepared and equipped with a wealth of knowledge. So without further ado, let's talk about the evolution of equal protection. Equal protection law is essentially about one question.

When is the government allowed to treat groups different? And the concept of equal protection comes directly from the 14th Amendment. Now the 14th Amendment says in part, quote, no state shall deny to any person within its jurisdiction the equal protection of the laws. End quote. That is the equal protection clause. Whenever someone references the equal protection clause, that is the specific clause they are referring to in the Constitution.

So there are a bunch of clauses within the Constitution and within the 14th Amendment specifically that speak to a variety of things. But when we talk about the equal protection clause, we are referring to that one sentence. No state shall deny to any person within its jurisdiction the equal protection of the laws. Now, before we go any further, there are two very important limitations that I want you to keep in mind. I want you to remember these in forever, okay? Number one, the Equal Protection Clause applies only to government action. It does not apply to private conduct. That means the Constitution generally doesn't prohibit discrimination by private individuals or private businesses unless the government is somehow directly involved. This concept is often referred to as the state action requirement. So let's say a city government passes an ordinance saying that only people of a certain national, can apply for city-owned housing. Because the discrimination is being carried out by the government itself, the equal protection

clause very much applies. But let's say your favorite privately owned restaurant decides it is going to no longer serve customers of a certain religion. Even though that action might violate certain federal or state civil rights laws, it is not automatically a constitutional equal protection violation because it's not government conduct. It is private conduct. So the equal protection clause only applies to government action. The second limitation is that the equal protection clause does not require the government to treat everyone the same.

This is a misconception. What it requires is that the government treat similarly situated people the same or people who are in the same situation in the same way. For example, the government can charge different driver's license fees for adult drivers and teenage drivers because those two groups of people are not in the exact same situation. But if the government charged different fees to two adults, just because of, let's say, their race, those people are similarly situated and therefore treating them differently would raise an equal protection issue. Another example would be if, let's say, a city requires commercial trucks to pay higher tolls on the road than passenger cars.

That's okay because commercial trucks and passenger cars are different. They're not similarly situated. Trucks are heavier. Trucks cause more wear on the road. It's a different category. But if the city charged two drivers of the same type of car using the same road, different tolls just because of, let's say, their race or gender or religion or something, something like that, those drivers are similarly situated and therefore treating them differently would raise an equal protection issue. So again, eco-protection does not mean the government has

to treat everybody exactly the same. It means the government has to treat people who are in the same situation the same way. Now, as I mentioned in the introduction, the 14th Amendment was ratified after the civil war. So it was initially intended to protect formerly enslaved people to ensure civil rights enforcement. But over time, the Supreme Court increasingly used the Equal Protection Clause to strike down any discrimination based on race, color, national origin, religion, gender, et cetera. But not every category that I just mentioned is analyzed the same way. Okay. And this is where equal protection law becomes more technical, because courts do not treat every classification equally. They apply different levels of judicial review depending on which classification is involved.

So there are suspect classifications, there are quasi-suspect classifications, and then other classifications that don't fit into suspect or quasi-suspect. Suspect classifications get the highest level of judicial review. This is otherwise known as strict scrutiny. Suspect classes include race, color, national origin, ethnicity, religion, and alienage. That means that laws that potentially discriminate on the basis of either race, color, national origin, ethnicity, alienage, or religion receive the highest and most strict level of judicial review in the courts. In other words, the government has the highest burden of proving the constitutionality of these laws. for a law to survive strict scrutiny.

The government has to prove two things. Number one, that it has a compelling government interest, and number two, that the law is narrowly tailored to achieve that compelling interest. The law cannot be broader than necessary. If there is a less restrictive way to accomplish the same goal, the law will usually fail. For example, let's say a state passes a law that says only people of a specific race can get government-funded college scholarships. The state claims that the program is meant to preserve certain cultural traditions associated with that group.

Because the law classifies people based on race, if the law were to be challenged, the court would apply strict scrutiny. That means that the state would have to show first that this, law serves a compelling government interest, and second, that the law is narrowly tailored to achieve that interest. So the state would have to show that preserving cultural traditions associated with that race is a compelling government interest, not just a legitimate government interest, but a compelling one, an extremely important one. And two, that using race in this way is the most precise way available to achieve that goal. There is no. There is no less discriminatory alternative that the state could use to preserve cultural traditions.

If the court finds that the government's objective is compelling and that the law is the least restrictive means of achieving that objective, the law can stand. But if the court finds either that the government's objective is not compelling or that the program could achieve the same goal without using racial classifications, the law would be struck down. So that's suspect classifications and strict scrutiny. Again, it applies to race, color, national origin, alienage, religion. Quasi suspect classes are one step down from suspect classes. Quasi suspect classes include gender and sex. So laws that classify people based on gender or sex are reviewed under what's called intermediate scrutiny. This is not as strict as strict scrutiny. Under intermediate scrutiny,

the government has to show two things. First, that the law serves an important governmental interest. And second, the classification is substantially related to achieving that interest. Okay. So whereas with strict scrutiny, we had the government has to show a compelling interest. Now with intermediate scrutiny, we have the government has to show an important interest. It's a little bit, you know, less of a, less of a burden. And then second, now we have with intermediate scrutiny, the classification is substantially related to achieving that important interest. So number one, the law has to serve a purpose that's more significant than just a legitimate purpose, but also not as demanding as the compelling interest required under strict scrutiny. And then two, under intermediate scrutiny, the law has to actually advance the stated goal

in a meaningful way. It can't just be based on assumptions that it's going to advance the stated goal. So I'll give you an example. A state passes a law requiring all state-run public universities to offer certain engineering scholarships only to women. The state argues the program is meant to address the historical under-representation of women in engineering fields. But a male student who meets all of the same academic qualifications applies for the scholarship and he's denied because he's a male.

He challenges the law under the Equal Protection Clause because the law classifies based on sex, the court would apply intermediate scrutiny. That means the state would have to show that increasing women's participation in engineering is an important governmental objective and that limiting the scholarship to women is substantially related to achieving that goal. And it's not broader than necessary. Okay. If the court finds both requirements are satisfied, the law could be upheld. But if both of those requirements are not satisfied, the law would likely be struck down. And then finally, there are other classifications. These are things like age, disability, income level. These don't fall under suspect or quasi-suspect

classifications and because of that, they are typically reviewed under the lowest level of scrutiny known as rational basis review. Under rational basis review, the government only has to show that a law is rationally related to a legitimate government interest. Very low bar here. So let's say a state passes a law that gives discounted public transportation fees to residents over the age of 65 in order to make transportation more affordable for retirees and encourage the use of public transit. Well, a 30-year-old resident who uses the same public transport challenges the law, arguing that it unfairly discriminates based on age. Because age is not a suspect or quasi-suspect classification, the court would apply rational basis review, the lowest level of scrutiny. Under rational basis review, the

government only needs to show that the law is rationally related to a legitimate governmental interest. Making transportation more affordable for seniors and encouraging transit use would probably qualify as legitimate objectives. And then offering discounted fees to seniors would be considered a rational way to achieve those goals. So the law would likely be upheld. In practice, it's usually not difficult for a law to survive rational basis review because the government only has to show a reasonable connection between the law and a legitimate goal. So remember, race, color, national origin, ethnicity, alienage, and religion trigger strict scrutiny, sex or gender, triggers intermediate scrutiny. And most other classifications like

age or income are reviewed under rational basis, the most deferential standard. Now let's talk about sexual orientation and transgender status because this has been a big topic of discussion over the last 10 years or so. The Supreme Court has not yet issued a major equal protection decision that explicitly assigns either sexual orientation or transgender status to a specific level of scrutiny. Because of that, some lower federal courts have taken somewhat different approaches. So when it comes to transgender status, for example, some courts treat laws that target transgender individuals as sex-based classifications because, you know, because

the law depends on sex assigned at birth and therefore the courts apply intermediate scrutiny, which is the same standard used in sex discrimination cases. Other courts, though, have applied rational basis review because those courts found that the laws at issue weren't classifying people based on sex, but maybe instead regulating conduct, like what bathrooms people can use, what surgeries, doctors can perform, things like that. And as we've talked about, when rational basis review is applied laws are much more likely to be upheld. Then, you know, when you talk about sexual orientation and laws that target people based on sexual orientation, there have been several major decisions where the Supreme Court has applied a more searching form of rational basis review is what they

call it. So in other words, the court is technically applying rational basis review, but in practice, the court is actually looking a bit more carefully and more skeptically at the government's justification than it usually would in rational basis review cases, but still, the court has not definitively assigned sexual orientation to a specific level of scrutiny. And because the Supreme Court has not definitively ruled on these issues, a lot of people are kind of waiting for that to happen and thinking it might happen soon. In fact, the Supreme Court actually just heard two cases involving state bans on transgender girls competing on girls' sports teams. And the court's decision in those cases, which are expected sometime before the end of June of this year, could finally answer the

question as it pertains to transgender status and what kind of judicial review gets applied to laws that target people based on transgender status. So we'll have to keep an eye out and see what happens there. But as of now, sexual orientation and transgender status are not, they do not belong to one, one explicit classification. Okay, let's take a break here when we come back. We will talk about how the Supreme Court evaluates laws that infringe on certain fundamental rights, even when classifications aren't involved. Welcome back. Before the break, we talked about certain classifications like race, color, religion, national origin, gender, sex, age, income, and how those classifications are treated by the courts. But now we have to talk about

fundamental rights, because courts will apply strict scrutiny when, you know, a law burdens certain fundamental rights, even if no suspect classification is involved. And the idea there is that certain rights are so essential that the government has to meet the highest constitutional burden before it can interfere with the right. So the court has treated the right to vote, the right to travel between states, the right to marry, certain parental rights. and in some context, the right of access to the courts as these fundamental rights that are entitled to strict scrutiny. When a law significantly burdens one of these rights, as we talked about earlier, the government has to show that the law serves a compelling governmental interest and is narrowly tailored to achieve that interest, right?

So let's say a state passes a law saying that only homeowners, not renters, only homeowners, only homeowners. homeowners are allowed to vote in state elections. Even though the law doesn't classify people based on race or national origin or another suspect classification, it directly burdens the fundamental right to vote. And because voting is considered a fundamental right, a court would apply that strict scrutiny standard in evaluating the constitutionality of the law. The state would have to show that limiting voting to homeowners serves a compelling governmental interest and that the law is narrowly tailored to achieve that interest. And in most situations, the state would have a very difficult time meeting that burden and the law would likely be struck down. So the key takeaway here

is that even when a law doesn't target a suspect classification, like race, color, national origin, etc. Courts will still apply the highest level of scrutiny if a fundamental right is involved. So we've covered the similarly situated requirement. We've covered the different classifications, the levels of scrutiny and fundamental rights. Now we need to talk about discriminatory intent versus discriminatory impact because sometimes a law doesn't explicitly mention race, color, gender, national origin, et cetera. However, despite not mentioning a class, the law disproportionately affects that class. And this is called a facially neutral law. So if a law openly classifies people based on race, national origin, gender, et cetera, the law will

automatically apply the appropriate level of scrutiny depending on what class is being targeted. But if the law is facially neutral and someone challenges the law arguing that it violates the equal protection clause, that is when the courts will come in and ask whether the facially neutral law has discriminatory impact or discriminatory intent. The answer to that question will determine whether a court will apply heightened scrutiny or deferential review. So let's talk about discriminatory impact first. a law has discriminatory impact when in practice, when the law is carried out and enforced, it affects one group more heavily than another, even if the law does not explicitly mention that group, right? So as an example, maybe a city requires a written licensing exam that ends up being

passed at a much lower rate by one racial group than the others. The results show unequal effects despite the law not targeting one racial group. That would be discriminatory impact. Impact alone is usually not enough to prove an equal protection violation and courts will apply rational basis review. Okay. That's, again, the lowest level of review. To trigger heightened constitutional scrutiny, when it comes to a facially neutral law, courts usually require proof that the government intended to discriminate. Discriminatory intent,

meaning lawmakers adopted the policy because of its effect on a particular group. An intent can sometimes be shown through maybe statements that lawmakers have made, maybe legislative history, maybe unusual procedural steps were taken that suggest targeting, or maybe there's overwhelming statistical patterns that are combined with other evidence that show intent, things like that. So again, we'll do an example. Let's say a city passes a new zoning ordinance that prohibits apartment buildings from being built in a particular neighborhood.

And this ordinance disproportionately affects one particular race. Well, on its face, the law doesn't mention race. It just restricts certain types of housing. So it's facially neutral. And as we know, it disproportionately affects. one race, which means it has discriminatory impact, but does the law have discriminatory intent? Let's say, during the lawsuit, challenging the ordinance, internal emails and public statements from city officials come to light that show that the lawmakers who supported the rule supported

it specifically because they wanted to prevent a particular racial group from moving into the neighborhood. Even though the law is facially neutral, the evidence shows that the government and acted because of its effect on that racial group. And that would demonstrate discriminatory intent. And therefore, a court would likely apply strict scrutiny in reviewing the law. So again, discriminatory impact alone usually only triggers rational basis review. Whereas discriminatory impact plus discriminatory intent usually triggers strict scrutiny. And remember that this is for laws, this analysis, this discriminatory. impact versus discriminatory intent analysis, this is for laws that are facially neutral.

This does not apply to laws that openly classify people. Okay. So now we're going to piece all of this together. Okay. We're going to create a flow chart of sorts. If a law is challenged under the Equal Protection Clause of the 14th Amendment, the first question a court will ask is whether this is government action, whether this is state action. Is the government involved? Because remember, private conduct, equal protection clause doesn't apply. Okay? So first question is, is the government involved? The next question is whether the law openly classifies people. If the answer is yes, the court will ask how. Does it classify people based on race, national origin, gender, how? That will determine which level of scrutiny is applied. But if the court answers no, This law does not openly classify people.

It's facially neutral. The court will then ask whether unequal outcomes reflect simply discriminatory impact or whether there's evidence of discriminatory intent. And that is how the court will determine which level of scrutiny to apply to facially neutral laws. And classifications involving race, color, national origin, alienage, religion, and laws burdening fundamental rights generally get the highest level of scrutiny. Gender and sex classifications get intermediate scrutiny and most other classifications, along with laws that only result in

unequal effects without proof of discriminatory intent, are reviewed under rational basis, the most lenient and deferential standard. Okay. Now we are going to talk about some of the most notable equal protection cases out of the Supreme Court. So the first significant early case was a case called Stroudder versus West Virginia. This was all the way back in 1880. This was about 12 years after the ratification of the 14th Amendment. West Virginia had a state law that said only white men were eligible to serve on juries. Taylor Strouder, a black man, was convicted of murder by an all-white jury, and he challenged his conviction. He argued that the exclusion of black citizens from jury service violated the Equal Protection Clause.

And the Supreme Court agreed with him. The court held that this law violated the equal protection clause because excluding people from jury service solely on the basis of race denied black defendants the equal protection of the law that is guaranteed by the 14th Amendment. So the court explained that the central goal or the central purpose of the 14th Amendment was to make sure that formerly enslaved people would enjoy the same civil rights and legal protections as white people. And a law that categorically excluded black citizens from jury service directly conflicted with the amendment's purpose. So this was one of the first major equal protection rulings because it established that states could not enact laws that explicitly discriminated on the

basis of race and that the 14th Amendment was specifically intended to protect formally enslaved people from discriminatory state laws. At this point, though, I want to be clear about this, when Stratter was decided we did not have the levels of scrutiny or suspect classifications that we have today. Okay, those came later. Strouder helped lay the groundwork for those things to come in the future. But everything that we just spent the first, what, half hour of this episode, 20 minutes of this episode talking about the levels of scrutiny, rational basis review, strict scrutiny,

all those things, suspect classifications. Those didn't come into play till later. So Stroudre was one of the early first equal protection cases. And what the court said is that laws could not discriminate. on race. Okay. The next big case was Plessy versus Ferguson. This was in 1896. Again, suspect classifications didn't exist yet when this lawsuit happened. The levels of judicial review didn't exist yet. This was another early case. So in Plessy versus Ferguson, Louisiana passed a law that required railroads to provide separate railway cars for white and black passengers.

A man named Homer Plessy, who was, he was mixed races, but he was legally classified as black under Louisiana law. He went ahead and deliberately sat in a whites only rail car because he wanted to challenge this law. And he got arrested. He was, you know, he was charged. He was convicted. He argued, though, that the law violated the Equal Protection Clause. And the question for the court was whether a state law requiring racial segregation and public transportation violates the Equal Protection Clause.

And the court said no. The court upheld Louisiana's law and ruled that racial segregation was constitutional so long as the separate facilities provided to each race were equal. And this decision established the separate but equal doctrine,

which meant that the government was allowed to separate people based on race so long as it said that the separate facilities or services, whatever they were, were equal. even if they weren't. Just as long as the state said, you know, we're offering equal services, equal, equal facilities, it's fine.

This racial segregation was constitutional. So this was a big decision because it allowed states to impose racial segregation, you know, while claiming compliance with the Constitution. And therefore, it actually weakened the protections of the 14th Amendment. And after Plessy was decided and the separate but equal doctrine was put in place, states started enacting laws that required. separate, you know, public schools for white and black students, separate railway cars, separate buses, separate waiting rooms, segregated restaurants, hotels,

theaters, bathrooms. All of these things were segregated and separated now. Even water fountains were labeled, either white or colored. And this separate but equal doctrine remained the governing rule until the Supreme Court overturned it in a case called Brown versus Board of Education in 1954, almost 60. years later. So in Brown, several cases from different states were actually combined into this one Supreme Court case that was challenging racial segregation in public schools. But in one of the lead cases, a black student named Linda Brown was required to attend a segregated school further

from her home, even though there was a closer white school available to her. And her parents argued that the state law is requiring segregated schools violated the Equal Protection Clause. So the question for the court was whether racial segregation in public schools, even when the schools are equal, quote unquote equal, violates equal protection clause. And the Supreme Court said yes, this was a unanimous decision where the court held that racial segregation in public schools is inherently unequal and therefore does violate the equal protection clause. So this was a major decision because it rejected the separate but equal doctrine. and the idea that segregation could ever satisfy equal protection in public education, which then had the effect of dismantling the constitutional justification for other segregation laws, right?

And the court explained in Brown that equality isn't just about physical facilities or resources. The segregation itself creates inequality by stigmatizing minorities. So really, Brown versus Board of Education fundamentally reshaped the constitutional meaning of equality under the 14th Amendment. Okay, moving on to the next case, in 1967, we got Loving v. Virginia, which struck down bans on interracial marriage and reinforced that marriage is a fundamental right. So Virginia had this law banning interracial marriage and a black woman named Mildred Jeter and a white man named Richard Loving.

They were legally married in Washington, D.C. When they went back to their home state of Virginia, they were arrested and convicted for violating Virginia's law. So they challenged the law, arguing that it violated the equal protection clause and the due process clause of the 14th Amendment. And the question for the court was whether state laws that ban interracial marriage violate both of these clauses. And the court unanimously said yes. The court held that racial classifications in marriage laws violate the equal protection clause and that marriage is a fundamental right under the due process clause, meaning the government cannot restrict it based on race. the decision also rejected the argument that the law treated both races equally.

So the state had argued that because both black and white individuals were being punished, this was equal treatment under the law. And the court explained that racial classifications themselves are constitutionally suspect. And this is the case that really solidified this strict scrutiny standard for racial classifications. And real quick, let me just stop here and say, this is why it's important to come to all of your classes here at Ambias University, right? because this is where those of you who listened to the last episode can start kind of connecting the dots between due process and equal protection because we covered due process in the most

recent episode, more specifically substantive due process, and how through substantive due process, the court has created certain fundamental rights that aren't explicitly written in the constitution. And Loving v. Virginia is a perfect example of a case that lies at the intersection of these two doctrines because the court held not only that racial classifications in marriage laws violate equal protection, but also that marriage is a fundamental liberty protected by the due process clause. So the decision shows how the court can sometimes rely on both equality principles and fundamental rights analyses to reach the same constitutional result. But again, connecting the dots, all of these episodes are kind of starting to make sense with one another. And we'll see this again

when we talk about Obregafel versus Hodges in just a minute. But first, before we talk about Obrugafel, we got to talk about Craig versus Boren. So Craig versus Boren was a 1979 case that established intermediate scrutiny. Oklahoma had passed a law that allowed women to purchase low alcohol beer at age 18, but it required men to wait until 21. So a male college student and a female vendor ended up challenging this law, and they argued that the different drinking ages for men and women violated the equal protection clause. And the question for the Supreme Court was whether a state law that treats men and women differently by setting different drinking ages violates the equal protection clause. And the court said yes. The court said that gender-based classification did not sufficiently

justify the different treatment of men and women and that the evidence offered by the state, the state had suggested that young men were more likely to drive drunk as their justification, wasn't strong enough to justify the discrimination. So the court formally articulated that sex-based classifications are subject to what we now call intermediate scrutiny, which means the government has to show, one, it has an important government interest, and two, the classification is substantially related to achieving that interest. Earlier cases had started to strike down sex-based distinctions, but Craig versus Boren is the

landmark decision that clearly defined the level of scrutiny for gender or sex classifications. Okay. And then we have Obergefell versus Hodges. So we briefly covered this case last episode because this is another one that sits at the intersection of due process and equal protection. This was a 2015 case where several same-sex couples from multiple states challenged state laws that either banned same-sex marriage or refused to recognize same-sex marriages that were legally performed in other states.

one of the lead plaintiffs, James Obergefell, married his husband in Maryland, but their home state of Ohio refused to recognize the marriage on official state records. So the question for the court here was, does the 14th Amendment require states to license marriages between two people of the same sex and recognize same sex marriages performed in other states? And the Supreme Court said yes. The court said the 14th Amendment guarantees same sex couples the fundamental right to marry, which, Again, that right was established in loving, and therefore states have to license same-sex marriages and recognize those that are performed in other states. And in reaching this decision, the court relied on both the due process clause, which protects fundamental liberties, and the equal protection clause, which prohibits unjustified unequal

treatment. So this case was significant because it required all states to treat same-sex couples equally, equal to heterosexual couples when it comes to. access to marriage and therefore eliminated state level bans on same-sex marriage. Now, the court did not go as far as to sign sexual orientation to a specific scrutiny tier, which we talked about earlier in this episode, and we said that to this day, the court hasn't done so. So we'll see if the court does that.

But this is just to say, despite the court's decision in Obergefell, it didn't assign a specific level of scrutiny that applies to sexual orientation. The last case, or really pair of cases that we have to talk about is students for fair admissions versus Harvard and students for fair admissions versus University of North Carolina. So these are two cases that were heard together in 2023, and they effectively ended affirmative action in college admissions. And this is what happened. Students for Fair Admissions is an organization that opposes race conscious admissions

policies, right? And it filed these two lawsuits challenging the admissions' programs at Harvard University and the University of North Carolina because both universities considered race as a factor in their admissions processes. The schools argued that doing it this way promoted educational diversity, but students for fair admissions argued that these policies discriminated against certain applicants and therefore violated the equal protection clause. There was also a Title VI federal claim in there too, but today we're just talking about the equal protection. So that's what we're sticking.

with. So the question for the court was whether university admissions programs that consider race as a factor in admissions decisions violate the equal protection clause. And the court said yes. The court held that because the programs explicitly considered race as a factor, strict scrutiny applied to the, you know, that was the analysis. And the university's policies did not satisfy the strict scrutiny standard. Specifically, the court said that the programs, lacked sufficiently measurable objectives and were not tailored, narrowly tailored, to achieve the stated diversity goals that these universities had. So those are some of the major Supreme Court cases. Now, when you step back and look at the history of equal protection, you can see this clear

constitutional evolution, right? The court moved from allowing segregation in Plessy, as long as it was equal, to then dismantling it completely in Brown, to then recognizing strict scrutiny and racial classifications in loving, and then eventually developing intermediate scrutiny for sex-based discrimination in Craig versus Boren, and then eventually recognized marriage equality in Obergefell. And most recently, limited the government's use of racial classifications in college admissions and ended affirmative action.

And together, you know, these decisions show how the Equal Protection Clause has evolved from, as I said, in the beginning of this episode, it evolved from a post-Civil War guarantee of basically legal equality into one of the Constitution's most powerful tools for defining when the government can treat groups differently and when it can't. And that is the gist of equal protection. I hope you enjoyed yet another class here at on my first. Bias University. And I hope to see you in the next class where we will start a three-part mini-series all about the three branches of the federal government.