Suspect classification

In American jurisprudence, a suspect classification is any classification of groups meeting a series of criteria suggesting they are likely the subject of discrimination. These classes receive closer scrutiny by courts when an Equal Protection claim alleging unconstitutional discrimination is asserted against a law, regulation, or other government action.

Federal Classifications

Strict scrutiny is applied to government action that affect groups that fall under a "suspect classification." The US Supreme Court has mentioned a variety of criteria that, in some combination, may qualify a group as a suspect classification, but the Court has not declared that any particular set of criteria are either necessary or sufficient to qualify.

Some of the criteria that have been cited include:

• The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.
• The group is a "discrete" or "insular" minority.
• They possess an immutable and/or highly visible trait.
• They are powerless to protect themselves via the political process.

Suspect Class

The Supreme Court has recognized race, national origin, and alienage as suspect classes; it therefore analyzes any government action that discriminates against these classes under strict scrutiny.

Alienage

Alienage is a unique class. For purpose of state law, alienage of legal aliens is a suspect class. As such, state actions are analyzed according 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 illegal aliens 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, 467 U.S. 202 (1982).

Quasi-suspect Class

Intermediate scrutiny is applied to groups that fall under a "quasi-suspect classification." Quasi-suspect class, with its intermediate scrutiny, is typically reserved for government sponsored discrimination on the basis of gender or legitimacy.

All others

Rational basis scrutiny is applied to all other discriminatory statutes. Rational basis scrutiny currently covers all other discriminatory criteria—e.g., age, disability, political preference, political affiliation, sexual orientation, or ex-felons.

Religion

Religion has not been classified as a suspect class. Where a plaintiff's First Amendment Free Exercise claim has failed, the Supreme Court has applied only rational basis scrutiny in its subsequent review of an equal protection fundamental right to religious free exercise claim based on the same facts. Generally, the courts will strike down a law as unconstitutional based on the free exercise clause without ever reaching the equal protection arguments. For example, the Court used the free exercise clause to strike down a law that targeted a specific religious sect, Santeria, in Church of Lukumi Babalu Aye v. City of Hialeah. The law was clearly drafted to treat practices of Santeria different than other religions but the court never needed to analyze equal protection and thus never discussed whether religion could be a suspect class.

Levels of Judicial Review

Strict Scrutiny

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

Intermediate Scrutiny

When intermediate scrutiny is involved, the courts are more likely to uphold the discriminatory law, particularly if it is based on real, fact-based, biological differences between the sexes, as opposed to sex-based stereotypes.

Rational Basis

When rational basis review is used, it means that the classification is one that overwhlemingly 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.

Classifications Under State Law

The Supreme Court's holdings impose a minimum standard to which each State must adhere. Hence, a State law that discriminates against citizens because of their race, must be reviewed by the applicable State and inferior federal courts using the strict scrutiny basis of review. A State may, generally, choose to give its citizens more rights or protections than the minimum federal standard when considering state law. For example, in 2008 the Supreme Court of California used the strict scrutiny basis of review to strike down a California statute denying legal recognition of same-sex marriages.

California, Connecticut, and Iowa classify sexual orientation is a suspect class under their respective state laws.