Suspect classification

The Supreme Court established the judicial precedent for suspect classifications in the cases of Hirabayashi v. United States, 320 U.S. 81 [5] and Korematsu v. United States, 323 U.S. 214 (1944).[6] The Supreme Court recognizes race, national origin, religion and alienage as suspect classes; it therefore analyzes any government action that discriminates against these classes under strict scrutiny.

In Perry v. Schwarzenegger, the U.S. District Court for the Northern District of California in its Findings of Fact commented that sexual orientation could be considered a suspect class, but on the facts presented Proposition 8 failed even to satisfy the much more deferential rational basis review.[7] The U.S. District Court for the District of Nebraska held the same in Citizens for Equal Protection v. Bruning,[8] but was reversed on appeal by the United States Court of Appeals for the Eighth Circuit.[9]

As the law currently stands, neither sexual orientation nor gender identity is considered a federal suspect class, although many states do consider them such.

Alienage, or the state of being an alien, i.e. a non-citizen of the United States, is a unique category. For purposes of state law, legal aliens are a suspect class (Graham v. Richardson, 403 U.S. 365 (1971)). As such, state actions are analyzed according to strict scrutiny. In contrast, because the United States Congress has the power to regulate immigration, federal government action that discriminates based on alienage will receive rational basis scrutiny. State acts that affect unlawful immigrants are generally analyzed with rational basis review unless the topic is education of children, in which case they are analyzed under intermediate scrutiny based on Plyler v. Doe, 457 U.S. 202 (1982).

Intermediate scrutiny is applied to groups that fall under a "quasi-suspect classification." Sex[10] and legitimacy of birth have been held to be quasi-suspect classes. In 2012, the U.S. District Court for Northern California discussed this type of classification, but applied heightened scrutiny without specifically labeling gays and lesbians a suspect or quasi-suspect class in its decision.[11] Striking down Section 3 of DOMA as unconstitutional in Windsor v. United States (2012), the 2nd Circuit Court of Appeals held sexual orientation to be a quasi-suspect classification, and determined that laws that classify people on such basis should be subject to intermediate scrutiny.[12] It was the first time a federal court had applied quasi-suspect classification in a sexual orientation case.[13] The Supreme Court, however, has not decided whether sexual orientation fits into any identified class.

Rational basis scrutiny is applied to all other discriminatory statutes. Rational basis scrutiny currently covers all other discriminatory criteria—e.g., age, disability, wealth, political preference, political affiliation, or criminal conviction.

To satisfy the strict scrutiny, suspect classifications such as race, alienage, or national origin must be necessary to promote a compelling state interest when there is no less restrictive alternative method available to accomplish the government (state's) interest.

The practical result of this legal doctrine is that government sponsored discrimination on the account of a citizen's race, skin color, ethnicity, religion, or national origin is almost always unconstitutional, unless it is a compelling, narrowly tailored and temporary piece of legislation dealing with national security, defense, or affirmative action. Korematsu v. United States, regarding Japanese internment, and Grutter v. Bollinger, upholding affirmative action based upon racial diversity, are the only cases in which a racially discriminatory law has been upheld under the strict scrutiny test.

Strict scrutiny is also applied to restrictions of any fundamental right, regardless of the group involved.[14]

When intermediate scrutiny is involved, the courts are more likely to oppose the discriminatory law when compared to a rational basis review particularly if a law is based on gender. However, a court will likely uphold a discriminatory law under intermediate scrutiny if the law has an exceedingly persuasive justification and applies to real, fact-based, or biological differences between the sexes. Mississippi University for Women v. Hogan, 102 S.Ct. 3331 (1982), Nguyen v. INS, 121 S.Ct. 2053 (2001).

When rational basis review is used, it means that the classification is one that overwhelmingly tends to be rational, e.g. distinguishing criminals from non-criminals. This leads to wide political discretion and a focus of judicial resources to other cases where the classification employed tends to be more suspicious, and thus close judicial balancing is needed.