Equal Protection I – Overview

I.     The law of the nature of equality.

A.     God is no respecter of persons. Equality before God does not mean equality of participation in God’s creation; rather, it means equality of opportunity for God’s justice. While the laws of God guarantee equality of opportunity, they do not guarantee any particular political or economic office or position. Equality, then, is quintessentially a legal term.

1.     As to application of law. Deuteronomy 10:12-17 and Acts 10:34-45. He does not have one standard of justice for the poor and another for the rich in His Court. Moreover, as judge, He does not prefer males over females, slaves over free, educated over uneducated, Jew over Gentile.

2.     As to man’s choices. See, e.g., Genesis 4:4-5 and Hebrews 11:4. If a man refuses redemption, then God will judge him according to his works; if he accepts it, then man escapes that judgment. See, Revelation 20:12,15. Even among the redeemed, God rewards those who put their faith to good works but not those who do not. Matthew 25:14-30.

3.     As to God’s plan for mankind. God makes distinctions not based upon man’s choice. He chooses whom He wishes to become the political leader of a nation. Daniel 2:21; 4:17,32. He chooses whom he wishes to be gifted for one calling as contrasted to another. Exodus 31:1-6; Daniel 2:21,23; 1 Kings 3:6-13. And He chooses the nation or the person He wishes to be His spokesman. Romans 9:10-12; Genesis 25:21-23. There is no presumption that all individuals or nations should be treated the same in such matters.

B.     Equality – An Overview.

1.     Civil laws cannot be partial or a “respecter of persons,” that is, they cannot judge or discriminate between people on the basis of status. “Status” is defined as who a person is or what condition a person is in, and is quintessentially a fact question.

2.     Equality is not measured by factual similarity or the attainment of any position or status. Lonang neither commands, nor implies, that all people ought to have an equal social, political, or economic status.

3.     “Equal opportunity” means that each person has the same opportunity before the law to be judged solely on the basis of his specific deeds of an unlawful nature or his legal relationships, and not on the basis of who he is or what condition he is in.

4.     Equal opportunity is a legal question, not a fact question, and cannot be measured by factual similarity or the attainment of any position or status. Laws which attempt to redistribute or equalize status or position utilize an improper definition of “equality” and are an impermissible form of partiality.

5.     Equality is an inalienable right given by God which government is obligated to enforce. There are no valid competing interests against which rights of equality can be balanced, and there is no right to attain equal factual status or position.

C.     Legal equality v. Factual equality.

1.     The modern view. The modern notion of equality is fact based – its goal is equal position. It presupposes that civil authority may sometimes infringe upon individual liberties because all rights are subject to “balancing,” depending on the facts. It rejects the idea of an unalienable right to equal opportunity and substitutes it with a civil right of equal position. It views law as merely the means to the end of enforcing a desired factual result.

2.     No respecter of persons. Lonang indicates that equality is a question of legal impartiality, not factual similarity. Deuteronomy 1:17 says, “Do not show partiality in judging; hear both small and great alike.” Leviticus 19:15 says, “Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly.” The command is to judge according to what a person does, not who they are. Each person has the equal opportunity to prove his innocence and to pay for his misdeeds.

3.     Factual equality rejected. Lonang also indicates that factual similarity is not the proper test for equality. In James chapter 2, the church is told not to show favoritism to the rich, but no condemnation of riches is made. Jesus told His disciples in Matthew 6:24: “You cannot serve both God and Money.” He did not say, “You cannot serve God and have money.” 1 Tim 6:10 states that “the love of money is a root of all kinds of evil,” not that “having money is evil.” Thus, lonang neither commands, nor implies, that all people ought to have an equal social, political, or economic status.

II.     Historic view of equality.

A.     Recognition at common law. If a legal system is to be consistent with lonang, then, it must incorporate this principle of equality.

1.     English experience. In the history of the church, the equality principle was embodied in the canon law term, ius commune. That principle became the foundation of law in England, which was known as the “common law.”

2.     American experience. Jesse Root noted that the American system of law had been purified of the special prerogatives of the English. America’s early statesmen endorsed the principle that the common good could be achieved only through a faithful adherence to the principle of legal equality of all men: “We hold these truths to be self-evident; that all men were created equal.” See, Declaration of Independence.

3.     Distinctions based on ability. Criteria related to merit did not violate the principle of equality. Because God gifted some, but not others, to do certain kinds of work, [Exodus 31:1-5] so man could ascertain by examination whether a particular person possessed the requisite ability to perform a particular task. However, such factual determinations are appropriate only in the private sector (i.e., employers). It is not for public officials to judge God’s gifts abilities and talents of citizens. Why? Because this is essentially a factual, not legal determination.

B.     A narrow view of the 14th Amendment.

1.     Original view – Slaughter-House Cases. Equal protection clause directed solely to discrimination against negroes as a class, or on account of their race.

2.     Early expansion beyond racial classifications. Gulf, Colorado & Sante Fe Railroad Co. v. Ellis (1897), 14th amend extended to apply to discriminations against certain kinds of debtors (irrespective of race).

3.     Equality is enforceable only with respect to the promulgation or enforcement of the law, i.e., private persons are not held legally accountable to equality standards.

C.     A limited jurisdiction to enforce equality.

1.     Federal laws are subject to a law of nature analysis because the legal context of the U.S. Constitution was established by the Declaration of Independence.

a.     Federal courts have greater jurisdiction over federal acts than state acts.

b.     Not a 5th Amend. due process argument, however.

c.     What mode of analysis? Declaration of Independence.

2.     However, federal courts have no law of nature (or common law) jurisdiction as to state laws because such jurisdiction was not enumerated.

3.     Enforcement of equal protection clause by courts requires prior Congressional statute. 14th Amend. §5.

III.     Modern view of equality – Overview.

A.     Modern equal protection analysis.

1.     Legal classifications which “respect” persons are inevitable and appropriate so long as they are reasonable.

a.     See, Lee Optical, requiring “invidious” (unreasonable) discrimination before equal protection is denied.

b.     This view rejects “no respecter of persons” as an inalienable right. That is, government can (in various situations) discriminate among differing classes of people, which classes are defined solely on the basis of who people are, not on the basis of what they do.

c.     Factual, not legal, analysis employed. See, Morey v. Doud, per Frankfurter. That is, equality is defined in factual or statistical terms.

2.     Equality is an alienable right which must be balanced against competing interests. This assumes equality is not absolute, but relative compared to asserted government interests.

3.     Standards of Review

a.     If a fundamental right or suspect classification is involved, the “strict scrutiny” standard is used to evaluate the regulation.

(1)     The “suspect classifications” include race, national origin, and alienage.

(2)     The “fundamental rights” include interstate travel, privacy, voting, and 1st amend. rights.

(3)     A law passes “strict scrutiny” if it is necessary to achieve a compelling government purpose (aka compelling state interest) and is narrowly tailored to achieve that purpose.

b.     If a quasi-suspect classification is involved, “intermediate scrutiny” is applied.

(1)     The “quasi-suspect” classifications include legitimacy and gender.

(2)     A law passes intermediate scrutiny if it serves an important governmental interest and is substantially related to that purpose.

c.     The “rational basis” standard applies to all other discriminatory classifications. A law passes “rational basis” scrutiny if it serves a legitimate governmental interest and is rationally related to that purpose.

d.     For strict or intermediate scrutiny to be applied, there must be intent by the government to discriminate. Intent may be shown by:

(1)     A law discriminatory on its face;

(2)     A discriminatory application of a facially neutral law; or

(3)     A discriminatory motive behind the law.

B.     Federal jurisdiction to review equal protection claims.

1.     Basis for constitutional review: 14th Amendment.

2.     Courts have expanded jurisdiction to review equality claims.

a.     No requirement of prior Congressional action. That is, courts generally do not require Congress to act before reviewing the substance of state laws. In other words, §5 of the 14th amend. is largely ignored (equal protection is judicially enforced, not enforced by Congress).

b.     Federal courts assume common law jurisdiction over state laws. Thus, federal courts determine whether state laws protect equality rights in the light of what the judges believe equality means. Traditionally, such common law jurisdiction (i.e., jurisdiction to issue rulings based on the law of nature) was reserved for state courts.

c.     Fashioning of remedies => judicial lawmaking. Federal courts have assumed great equitable powers to design and implement new and broad remedies for equality violations, which remedies are viewed as rules of general applicability (like a statute).

3.     State action requirement. Since the Constitution generally applies only to governmental action, to show a constitutional violation state action must be involved. Constitutional requirements regarding equal protection do not apply to private action.

a.     This concept applies to government and government officers at all levels – local, state, or federal. The Equal Protection Clause of the fourteenth amendment is limited to state action. However, grossly unreasonable discrimination by the federal government violates the Due Process Clause of the fifth amendment. The Court applies the same tests under either constitutional provision. See, Weinberger v. Wiesenfeld.

b.     Exclusive Public Functions. State action can be found in actions of seemingly private individuals who perform activities that are so traditionally the exclusive prerogative of the state that such activities are characterized as state action no matter who performs them.

c.     Significant State Involvement – Facilitating Private Action. State action can also be found wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its private citizens. A dangerous “loophole” in the jurisdictional limitations on civil government.

C.     Where the law treats certain classes of people differently from others, it is an equal protection problem.

1.     Railway Express Agency v. New York. Court upheld municipal police regulation which forbade the use of vehicles to advertise for hire.

a.     Plaintiff argued law of nature: City is a respecter of persons. Permission to advertise was based on who the vehicle owner is, not on the nature of the advertisement.

b.     Court favored “practical considerations based on experience rather than theoretical inconsistencies.” That is, the legal rule was ignored.

2.     New Orleans v. Dukes, where the Court upholds a city ordinance disallowing street vendors to continue in business who have not operated continuously for eight years.

a.     City ordinance is a respecter of persons.

b.     Court holds the legitimacy of the classification to “preserve the appearance of the French Quarter” is “obvious.”

c.     All the while denying the Court sits as a “superlegislature.”

3.     U.S. Railroad Retirement Board v. Fritz, similarly.

4.     Nordlinger v. Hahn. Court upholds California Proposition 13, which taxes property based on acquisition cost, not current value.

a.     Is proposition 13 a “respecter of persons”? Probably “Yes.” Compare with sales tax, which is paid only once on property, whereas property taxes are imposed annually on the same property. Although the first year’s tax applies on the basis of what the owner “did,” all subsequent year’s taxes are based on a past act which the owner cannot do anything about in the present, hence, the past price becomes a part of the owner’s status (early owner vs. late owner).

b.     Blackmun (majority): legitimate state interest in “local neighborhood preservation.” Also a protected “reliance” of taxpayers on amount of their tax bill!? Statute is valid on basis of public policy.

c.     Thomas (concurring): Deference to legislatures to do as they will. But, wasn’t Proposition 13 a voter initiative?

d.     Stevens (dissenting): Proposition 13 is a respecter of persons, but he concedes Court has common law jurisdiction.