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perform work-related duties, such as their lunch

breaks. Blanket English-only policies have been

challenged and generally are not upheld unless

they are clearly related to a legitimate agency or

business concern.

To improve Title VII’s effectiveness, Congress

passed the Equal Employment Act of 1972. With

this legislation, the Equal Employment Oppor-

tunity Commission (EEOC) became the primary

enforcer of federal laws prohibiting job discrimina-

tion. It uses Title VII to protect employees who ﬁ le

discrimination claims or aid in investigations from

retaliation. Title VII antidiscrimination provisions

apply to private employers, state and local govern-

ments, and educational institutions that have 15 or

more employees. The federal government, labor

unions, and employment agencies must also com-

ply with Title VII. Employment discrimination

law is constantly changing as new groups assert

their rights and demand equal protection.

One major exception to most federal employ-

ment discrimination laws concerns churches and

other religious organizations. These entities are

permitted both by way of exemption and because

of the free exercise clause of the First Amend-

ment to discriminate in hiring for religious rea-

sons. Thus, Catholic churches are permitted to

restrict the hiring of priests to males who meet

the speciﬁ c requirements of that faith.

For more information: Allred, Stephen.

Employment Law: A Guide for North Carolina

Public Employers. Chapel Hill: Institute of Gov-

ernment, University of North Carolina at Chapel

Hill, 1999; Center for Education and Employment

Law. Desktop Encyclopedia of Public Employment

Law. 15th ed. Malvern, Pa.: Center for Education

and Employment Law, 2005; Conway, M. Mar-

garet, David W. Ahern, and Gertrude A. Steuer-

nagel. Women and Public Policy: A Revolution

in Progress. 3d ed. Washington, D.C.: CQ Press,

2005; Gold, Michael Evan. An Introduction to the

Law of Employment Discrimination. Ithaca, N.Y.:

Cornell University Press, 2001; Jasper, Margaret

C. You’ve Been Fired: Your Rights and Remedies.

Oxford and New York: Oceana Publications, 2005;

Twomey, David P. Employment Discrimination

Law: A Manager’s Guide: Text and Case. Mason,

Ohio: Thomson, West Legal Studies in Business,

2005.

—Ruth Ann Strickland

Employment Division v. Smith 494 U.S. 872

(1990)

By a vote of 6-3, the U.S. Supreme Court, in

Employment Division v. Smith, reversed Oregon’s

highest court and held that, despite guarantees of

the First and Fourteenth Amendments, a state

law aimed at preventing drug abuse may punish

Native Americans for using peyote in a religious

exercise. Associate Justice Antonin Gregory

Scalia’s majority opinion, joined by Chief Justice

William Hubbs Rehnquist and Associate Jus-

tices Byron White, John Paul Stevens, Sandra

Day O’Connor, and Anthony M. Kennedy,

argued that Oregon’s law was valid since it did not

target religion directly but interfered with it only

incidentally.

The case arose when a private drug counseling

organization ﬁ red Alfred Smith and Galen Black

for ingesting a proscribed hallucinogen and the

Division of Employment Security subsequently

refused to pay them unemployment benefits

because their employer discharged them for work-

related misconduct. Although Oregon did not pay

the men any benefits, neither did it prosecute

them for drug use.

Scalia distinguished between Smith, which

involved a criminal act, and two previous cases

where the government was ordered to pay unem-

ployment beneﬁ ts. A Seventh-Day Adventist ﬁ red

for refusing to work on Saturday (Sherbert v.

Verner, 374 U.S. 398 [1963]) and a Jehovah’s Wit-

ness who quit his job when he was transferred to

making military equipment (Thomas v. Review

Bd. of Indiana Employment Security Div., 450

U.S. 707 [1981]) were both guaranteed payments

on the basis of religious freedom.

Further, Scalia maintained that the Constitu-

tion guarantees the right to religious belief and

profession of faith but not necessarily the right to

engage in physical acts such as ingesting peyote. In

some hybrid cases where freedom of religion

232 Employment Division v. Smith

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combines with other liberties, such as free speech,

the Court has prohibited government interference.

But Scalia refused to employ what he called a bal-

ancing test, or what the minority referred to as

strict scrutiny, to weigh the harm of granting

or not granting a religious exception to a generally

applicable criminal statute. Instead, he argued

that a neutral law of general applicability did not

conﬂ ict with the right to exercise religion freely.

Justice Harry A. Blackmun ﬁ led a dissenting

opinion in which Justices William J. Brennan,

Jr., and Thurgood Marshall joined. He maintained

that the majority departed from well-settled First

Amendment jurisprudence of strict scrutiny,

where government allows a religious exemption to

a general law unless there is a compelling interest

that cannot be served by less restrictive means.

For example, the Court allowed an exemption to

compulsory school attendance for Amish children

on the basis of their religious beliefs. It decided

that a few children leaving school at age 16 did

not damage the educational system (W

ISCONSIN V.

ODER, 406 U.S. 205 [1972]). Blackmun pointed out

that nearly half the states and the national govern-

ment provide an exception for bona ﬁ de members

of the Native American Church to use peyote in

religious exercises. In other words, a state or the

nation may grant a religious exception to a law, but

the Constitution does not require it.

Two previous decisions also failed to use strict

scrutiny in considering free exercise of religion. In

1986, Chief Justice Warren E. Burger ruled

the government was justiﬁ ed in not paying wel-

fare benefits to a Native American family that

refused to obtain a Social Security number for

their daughter on grounds that it would take away

the purity of the girl’s spirit and violate her Native

American religious beliefs. Burger claimed a num-

ber was facially neutral in religious terms and that

“[t]he free exercise clause simply cannot be under-

stood to require the Government to conduct its

own internal affairs in ways that comport with the

religious beliefs of particular citizens” (Bowen v.

Roy, 476 U.S. 693 [1986]).

Two years later, Justice O’Connor spoke for the

Court in allowing the U.S. Forest Service to build

a road in a national forest as an internal govern-

mental matter despite the fact that it desecrated

sacred Indian land (Lyng v. Northwest Indian

Cemetery Protective Assn., 485 U.S. 439 [1988]).

In 1993, using its authority under Section 5 of

the Fourteenth Amendment, Congress passed

the Religious Freedom Restoration Act

(PL 103-141) in an attempt to enforce the amend-

ment by requiring the Court to use strict scrutiny

in cases of fundamental rights. But in Boerne

v. Flores, 521 U.S. 507 (1997), the Court declared

the measure void as a violation of separation of

powers. Then, in 2000, Congress passed the Reli-

gious Land Use and Institutionalized Persons Act

to apply strict scrutiny in certain cases. It was

upheld in part by Cutter v. Wilkinson, 544 U.S.

709 (2005).

For more information: Emenhiser, JeDon. “The

G-O Road Controversy: American Indian Reli-

gion and Public Land.” Available online. URL:

http://www.humboldt.edu/~jae1/emenLyng.html.

Accessed May 7, 2008; Employment Div. v. Smith.

Available online. URL: http://caselaw.lp.ﬁ ndlaw.

com/scripts/get-case.pl?navby=case&court=us&v

ol= 494&page=872. Accessed May 7, 2008; Epps,

Garrett. To an Unknown God: Religious Free-

dom on Trial. New York: St. Martin’s Press, 2001;

Long, Carolyn. Religious Freedom and Indian

Rights: The Case of Oregon v. Smith. Lawrence:

University of Kansas Press, 2000.

—JeDon Emenhiser

Engel v. Vitale 370 U.S. 421 (1962)

Engel v. Vitale was the ﬁ rst Supreme Court case

to address government-sponsored prayer in public

schools. In this case, with two justices not partici-

pating, the Court ruled 6-1 that a prayer composed

by a government violated the establishment

clause of the First Amendment.

The case, brought by Jewish and Unitarian par-

ents, challenged the constitutionality of a prayer

composed by New York’s Board of Regents, a state

body, and required to be recited daily in their

children’s school: “Almighty God, we acknowl-

edge our dependence upon Thee, and we beg Thy

blessings upon us, our parents, our teachers, and

Engel v. Vitale 233

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our Country.” Although the prayer was intended

as nondenominational, they argued that it was

contrary to their beliefs.

Justice Hugo Black, writing for the majority,

stated that it is not the business of government

to compose prayers. He reviewed the history of

the established church and religious persecution

in England, including the role of Parliament in

imposing the Book of Common Prayer as the only

acceptable form of worship. He then summarized

the colonial history of establishment and persecu-

tion by the same groups who had left England to

seek religious freedom. All this history, he said,

was well known to the founders and shaped their

thinking as they crafted the establishment clause.

He portrayed the Founding Fathers as “men

of faith in the power of prayer” who did not want

the content of their prayers to be determined by

elected or hereditary leaders. He depicted the

establishment clause as a protection not just for

religious minorities but as an expression of belief

by the founders that “religion is too personal, too

sacred, too holy to permit its ‘unhallowed perver-

sion’ by a civil magistrate.”

He contributed to the Court’s working inter-

pretation of the First Amendment by stating that

coercion need not be present for the establish-

ment clause to be violated. Indirect coercion,

such as that a child might experience when given

the choice of leaving the classroom during the

prayer, was also an inappropriate use of govern-

ment authority.

In a footnote, he offered reassurances that

Engle would not signal the end of public patriotic

observances that incidentally touched on religion,

such as singing patriotic songs invoking God or

reciting the Declaration of Independence.

Justice William O. Douglas, however, wrote

a concurring opinion in which he suggested that

everything from the Court crier to the community

Christmas tree might be in violation of the estab-

lishment clause. He deﬁ ned the issue in monetary

terms and said government should not fund reli-

gious exercises regardless of how small the cost

involved. He expressed his view that the Court had

erred in its decision in E

VERSON V. BOARD OF EDU-

CATION, 330 U.S. 1 (1947), in which he had been

a part of the majority, and endorsed the Everson

dissent of Justice Wiley Rutledge.

The lone dissenter, Justice Potter Stewart,

insisted that in the absence of coercion, there was

no establishment clause violation. He played on

the “tradition” theme, declared the history of the

Book of Common Prayer irrelevant, and quoted

the entire third verse of the “Star-Spangled Ban-

ner,” as an example of government recognition of

the role of religion in the United States. The justi-

ﬁ cation for upholding New York, he asserted, had

been summed up 10 years earlier in the assertion,

“We are a religious people whose institutions pre-

suppose a Supreme Being” (the words, ironically,

of Justice Douglas in Z

ORACH V. CLAUSON, 343 U.S.

306, 1952).

The Court’s decision in Engel prompted wide-

spread public and governmental condemnation of

the ruling including congressional hearings and

calls for a constitutional amendment.

For more information: Fisher, Louis. Religious

Liberty in America: Political Safeguards. Law-

rence: University Press of Kansas, 2002; Fraser,

James W. Between Church and State: Religion

and Public Education in a Multicultural America.

New York: St. Martin’s Grifﬁ n, 1999.

—Jane G. Rainey

English Bill of Rights (1689)

The English Bill of Rights of 1689 is one of the

basic documents of the English constitution and

a precursor of the American Bill of Rights. It

is also a supporting document for Scottish, Irish,

New Zealand, and other Commonwealth state-

ments of rights and for the United Nations Decla-

ration of Human Rights, as well.

Adopted by the Parliament of England (1 Will

& Mar. sess. 2 c. 2), the full name of the Eng-

lish Bill of Rights (1689) is An Act Declaring the

Rights and Liberties of the Subject and Settling

the Succession of the Crown. It was adopted, like

the American Bill of Rights, as a legal device for

controlling the government.

The adoption of the English Bill of Rights came

at the end of decades of struggle between the Stu-

234 English Bill of Rights

xviii+446_EofUSConsti-v1.indd 234 3/12/09 3:04:51 PM

art dynasty and the English establishment. The

English monarchy had been restored, following

the beheading of Charles I and Oliver Cromwell’s

rule during the English Protectorate, with the

accession in 1660 of Charles II (1630–85). When

Charles II suddenly died, it opened the way for

his brother James to become king. James II was

a dedicated Roman Catholic in a very Protestant

England. He was married to Mary of Modena,

who, along with James, sought ways to restore

Roman Catholicism as the controlling religion in

England.

On April 16, 1687, James II issued a declaration

of indulgence that allowed Roman Catholics and

Protestant dissenters to worship publicly. He also

abrogated the Test Act, which mandated a reli-

gious test of conformity to Anglicanism. Most peo-

ple in England suspected that James’s expressions

of religious tolerance were a sham. His hidden

agenda was believed to be the regaining of con-

trol by Roman Catholics. James’s veiled attempt to

Romanize the English army after the failed revolt

of the duke of Monmouth inﬂ amed public suspi-

cions even further.

On June 10, 1688, a son, Prince James Francis

Edward, was born to James II and Queen Mary.

The threat of a Roman Catholic heir to the Eng-

lish throne moved prominent English leaders to

seek to replace James with his Protestant daugh-

ter Mary, who was married to Prince William, the

stadtholder of the United Provinces of Holland.

On November 5, 1688, Prince William landed

with an armada of 15,000 men at Torbay on the

southwest coast of England. The date was signiﬁ -

cant because it was the same date as the Gunpow-

der Plot of 1605, an attempt by Roman Catholics

to blow up Parliament. Opposition collapsed, and

James II was permitted to escape to France on

December 23, 1688.

A convention of Parliament drafted the Dec-

laration of Right, which was accepted by William

and Mary on February 13, 1689, at Whitehall.

Having given their assent to the Declaration of

Right, subsequently they were offered the throne

and were crowned on December 16, 1689. Their

royal assent effectively ended rule by the divine

right of kings and instituted instead a consti-

tutional parliamentary sovereignty. Parliament

adopted the Declaration of Right on December

16, 1689, as the English “Bill of Rights.”

The Bill of Rights banned accession to the Eng-

lish throne by Roman Catholics. It also indicted

King James II with attempting to extirpate the

Protestant religion, the laws of the kingdom,

and the liberties enjoyed by people in the king-

dom. The speciﬁ c charges included the unlawful

exercise of power, abuse of power in matters of

religion, taxation without the permission of Par-

liament, high-handed prosecutions, and abuse of

the members of Parliament. He was also accused

of abusing the judicial system by using corrupt

jurors, levying excessive ﬁ nes, imposing cruel pun-

ishments, and using the proceeds of judicial con-

victions as rewards for supporters. These abuses

by the monarchy violated the rights of Parliament,

of religious liberty, and of citizens. When William

and Mary agreed to the Declaration of Right, they

agreed to parliamentary sovereignty. They were

also agreeing to a broadening of civil liberties

that would eventually spread religious liberty and

other rights around the globe.

The English Bill of Rights, along with the

Magna Carta of 1215, were of signiﬁ cant inﬂ u-

ence on the U.S. Constitution and Bill of Rights.

First, the necessity of a bill of rights was central

to the debates surrounding the ratification

of the Constitution in 1787. Anti-Federalists

who opposed the Constitution criticized it for its

lack of a bill of rights, such as the one found in

England. Federalists such as Alexander Ham-

ilton, who supported the Constitution, denied

the need for a bill of rights because many of the

provisions found in documents such as the Eng-

lish Bill of Rights were already placed in the new

proposed Constitution. The English Bill of Rights

was also inﬂ uential in terms of its content, which,

among other protections, secured many religious

liberties and granted individuals the right to peti-

tion the monarch to address grievances. These

provisions later would appear in the U.S. Consti-

tution’s First Amendment.

For more information: Hill, Christopher. The

Century of Revolution, 1603–1714. London:

English Bill of Rights 235

xviii+446_EofUSConsti-v1.indd 235 3/12/09 3:04:51 PM

Thomas Nelson, 1961; Pocock, J. G. A. Three

British Revolutions, 1641, 1688, 1776. Princeton,

N.J.: Princeton University Press, 1980; Straka,

Gerald M. The Revolution of 1688 and the Birth

of the English Political Nation. Lexington, Mass.:

Heath, 1973; Swisher, Clarice, ed. England. San

Diego, Calif.: Greenhaven Press, 2003; Trevelyan,

George Macaulay. England Under the Stuarts.

New York: Barnes & Noble, 1965.

—Andrew J. Waskey

environmental regulation

The power of the U.S. Congress to regulate envi-

ronmental problems is based on Section 8’s com-

merce clause under Article I of the U.S.

Constitution, which provides that “Congress

shall have the power . . . to regulate commerce

with foreign nations, and among the several

states.” Because Congress has no general police

power, it may only regulate those environmental

issues that fall within its commerce clause power,

and the scope of this power is rapidly changing.

Under the commerce clause, Congress may

regulate three main categories of activity: 1) the

use of the channels of interstate commerce;

2) the instrumentalities of interstate commerce,

or persons or things in interstate commerce; and

3) activities having a substantial relation to inter-

state commerce (U

NITED STATES V. LOPEZ, 514 U.S.

549, 558–59 [1995]). With the Supreme Court’s

decisions in United States v. Lopez and U

NITED

TATES V. MORRISON, limitations have been placed

on Congress’s power to regulate under the com-

merce clause, and signiﬁ cant questions have been

raised regarding the constitutionality of the major

federal environmental statutes.

In the Clean Water Act (CWA), Congress

sought to limit the discharge of pollutants into

“navigable waters,” which the act defined to be

“the waters of the United States.” Because navi-

gable waters are channels of interstate commerce

and have a substantial effect on interstate com-

merce, it is constitutional for Congress to regulate

them under its commerce clause power. In the

past, however, the agencies charged with carrying

out regulation under the CWA have interpreted

it expansively, taking the position that they could

regulate both navigable lakes and rivers that cross

state lines as well as smaller streams, ditches, cul-

verts, and wetlands that are adjacent to navigable

waters or have a hydrological connection to navi-

gable waters. This issue was ﬁ rst addressed by the

Supreme Court in United States v. Riverside Bay-

view Homes, Inc., 474 U.S. 121 (1985). There, the

Court held that the CWA could cover wetlands

that are located directly adjacent to traditional

navigable waters. The Court reasoned that “the

transition from water to solid ground is not neces-

sarily or even typically an abrupt one” and that the

federal government was acting properly within its

commerce clause power when it interpreted the

act to include these wetlands.

However, in Solid Waste Agency of N. Cook

County v. United States, 531 U.S. 159 (2001),

the Supreme Court held that the government

had gone too far in its interpretation of the Clean

Water Act. In that case, the government sought

to regulate an isolated gravel pit that ﬁ lled with

water seasonally. The application of the CWA

to this pit was based on a theory that migratory

birds used it as a habitat and that the industries

surrounding migratory birds, such as birdwatch-

ing and tourism, had a substantial effect on

interstate commerce, bringing this regulation

within Congress’s commerce clause power. The

Court struck down this regulation, holding that

where the only tie between the regulated water

and interstate commerce was the presence of

migratory birds, its regulation under the com-

merce clause power raised serious constitutional

questions. In 2006, the Supreme Court spoke

to this issue again in Rapanos v. United States,

126 S. Ct. 2208. There, the Court struck down

regulation of wetlands that were connected to

navigable waters by human-made drains and

ditches with an only intermittent ﬂ ow of water.

As in Solid Waste Agency of N. Cook County, the

Court noted that the government’s interpretation

of the act to cover these wetlands stretched the

outer limit of Congress’s commerce clause power

and raised difficult constitutional questions.

Undoubtedly, the question of how far the fed-

eral government may go in its regulation of water

236 environmental regulation

xviii+446_EofUSConsti-v1.indd 236 3/12/09 3:04:51 PM

pollution will continue to pose difﬁ cult constitu-

tional questions.

The commerce clause is also the source of Con-

gress’s power to protect endangered species under

the Endangered Species Act (ESA). Litigants have

argued that the federal government lacks the

power to prohibit the harming of species that live

entirely within a single state because this type of

regulation goes beyond its limited power to regu-

late interstate commerce. To date, the Supreme

Court has declined to consider cases raising the

constitutionality of these types of regulations, but

the courts of appeals have addressed the issue in

light of the Supreme Court’s recent jurisprudence

in other areas of commerce clause litigation. In

National Association of Home Builders v. Babbitt,

130 F.3d 1041 (DC Cir.) (1997), the U.S. Court of

Appeals for the District of Columbia Circuit

upheld the application of the ESA to the Delhi

sands ﬂ ower-loving ﬂ y, a species of ﬂ y found only

in two counties in California.

The court held that the application of the ESA

to this species was appropriate as a regulation of

the use of the channels of interstate commerce,

reasoning that this regulation was justiﬁ ed as an

aid to the ESA’s prohibitions against transporting

and selling endangered species in interstate com-

merce. The court also held that this application

of the ESA was constitutional because the extinc-

tion of species, if allowed, would have a substan-

tial effect on interstate commerce. The court

noted that such regulation was needed to prevent

destructive interstate competition, a regulatory

objective that has long been held to be constitu-

tional under the commerce clause. Several years

later, in Rancho Viejo v. Norton, 323 F.3d 1062

(DC Cir.) (2003), the D.C. circuit court again

upheld the application of the ESA in the case of

the arroyo southwestern toad, a rare species living

in California, ﬁ nding that case to be indistinguish-

able from National Association of Home Builders.

The U.S. Supreme Court declined to hear both

cases. A three-judge panel of the U.S. Court of

Appeals for the Fifth Circuit reached a similar

holding in GDF Realty v. Norton, 326 F.3d 622

(5th Cir.) (2003), and despite an extensive dis-

sent from other judges in the circuit, the Supreme

Court also declined to hear that case. Thus, sig-

niﬁ cant questions remain as to the constitutional-

ity of many applications of the ESA.

Questions regarding the constitutionality of

federal environmental regulation will undoubt-

edly continue to occupy the courts as they reﬁ ne

and interpret the Supreme Court’s landmark com-

merce clause decisions in United States v. Lopez

and United States v. Morrison.

For more information: Broderick, Gregory T.

“From Migratory Birds to Migratory Molecules:

The Continuing Battle over the Scope of Federal

Jurisdiction Under the Clean Water Act.” Colum-

bia Journal of Environmental Law 30 (2005):

473–523; Klein, Christine A. “The Environmental

Commerce Clause.” Harvard Environmental Law

Review 27 (2003): 1–68; Mank, Bradford C. “Can

Congress Regulate Intrastate Endangered Species

Under the Commerce Clause? The Split in the

Circuits over Whether the Regulated Activity Is

Private Commercial Development or the Taking

of Protected Species.” Brooklyn Law Review 69

(2004): 923–1,001.

—Johanna Hickman

equal protection

The Fourteenth Amendment, ratified in

1868, provides that “No State shall . . . deny to any

person within its jurisdiction the equal protection

of the laws.” The amendment’s primary concern

was to protect certain legal rights of the newly

freed slaves. Contemporary understandings of

the equal protection clause see it as a guarantee

that all persons similarly situated receive equal

treatment before the law. The government must

not make arbitrary, capricious, and unreasonable

distinctions among individuals; for example, a rule

that people with red hair may not be granted a

driver’s license even though they meet all other

legal qualifications would be a violation of the

equal protection clause (at least absent some com-

pelling evidence regarding the driving proclivities

of redheads).

The Fourteenth Amendment is directed at

state governments, but the federal government is

equal protection 237

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also held to equal protection standards identical to

those applied to the states. In the case of B

OLLING

V. SHARPE, 347 U.S. 497 (1954), the Supreme Court

held that the due process clause of the Fifth

Amendment, applicable to the national govern-

ment, should be understood as containing implic-

itly an equal protection component. The equal

protection tests and analytic approaches detailed

below are identical for Fourteenth Amendment

challenges to state action or Fifth Amendment

challenges to federal action.

Not all governmental classiﬁ cations raise equal

protection problems. Granting driving licenses or

the vote to 18-year-olds but not 12-year-olds is a

reasonable (or at least not unreasonable) classiﬁ -

cation, even if there are some 12-year-olds who

would qualify for Daytona and can recite the Con-

stitution forward and backward.

Modern equal protection doctrine recognizes

a variety of situations that may raise equal pro-

tection problems and reviews government clas-

siﬁ cations using several levels of judicial scrutiny

ranging from very deferential review that makes it

easy for legislation to pass constitutional muster to

a level of scrutiny so strict that very few classiﬁ ca-

tions subject to its intensity can survive constitu-

tional challenge.

The lowest level of Supreme Court review is

known as “rational basis review.” In addressing

the central equal protection question of when

people are sufﬁ ciently similar in relevant respects

that they must be treated equally, the Court using

rational basis review applies a test of means-ends

rationality to the governmental classiﬁ cation. In

short, the Court inquires whether the classiﬁ cation

is rationally related to a legitimate governmental

objective. Thus, if the government’s objective is

to have safe drivers on the road, a requirement of

good vision for a driver’s license and thus denial

of a license to blind persons do not constitute a

violation of the constitutional rights of the blind.

With respect to a right to drive, the blind and the

sighted are not similarly situated.

At the other end of the analytic spectrum is a

type of review known as “strict scrutiny.” A

classiﬁ cation subjected to this level of scrutiny must

serve some “overriding” or “compelling” govern-

mental interest, and the means chosen to achieve

the government’s goal must be very carefully and

narrowly crafted to achieve that objective. There

are basically two types of classiﬁ cations that trig-

ger such intense scrutiny: those that involve what

the Court has described as “suspect classifica-

tions” and those that impinge on fundamental

rights. Suspect classiﬁ cations are those that are

extremely likely to involve a governmental effort

to harm some minority, so likely that the Court

will immediately be suspicious when the law con-

tains such a classiﬁ cation. Fundamental rights, at

least for equal protection purposes, are relatively

limited, including, most prominently, the right

to vote, the right to access to the judicial pro-

cess, the right to travel both interstate and abroad,

and certain aspects of the right to privacy.

The quintessential example of a suspect classiﬁ -

cation is race. Given the origins of the Fourteenth

Amendment, as well as U.S. history of discrimina-

tion against African Americans, it is not surprising

that the contemporary Court views racial classiﬁ -

cations with such extreme disfavor. But this was

not always the case.

While the framers of the Fourteenth Amend-

ment wanted to protect certain civil rights of

African Americans (for example, guaranteeing

to them equal ability with whites to enter into

contracts, purchase property, or serve on juries),

they were not necessarily eager to protect what

they considered political or social rights, such as

the right to vote (political) or the right to equal

access to a variety of public accommodations

(social). This distinction was at the heart of the

Court’s decision in the infamous case of P

LESSY

V. FERGUSON, 163 U.S. 537 (1896), in which the

Court upheld a Louisiana law requiring separate

railroad cars for whites and all other races. Faced

with an equal protection challenge to the law, the

Court held that as long as the separate facilities

were equal, there was no constitutional violation.

The Court said that the commingling of the races

in public was a matter of social relationships and

that the state’s decision to prevent such interaction

was a reasonable one. Thus was born the notion of

“separate but equal” as the Court in effect gave

its imprimatur to a wave of state laws requiring

238 equal protection

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segregation in a variety of public facilities, includ-

ing public schools. The lone dissenter in Plessy,

Justice John Marshall Harlan, wrote that

the “equality” Louisiana provided was a thin dis-

guise for serious inequality. As he understood the

Constitution, “there is in this country no superior,

dominant, ruling class of citizens. . . . Our consti-

tution is color-blind.”

Plessy was reflective of prevalent racial atti-

tudes (racism) in America, both in the North and

South. These attitudes would not begin to change

until the middle of the 20th century and even

then (as now) very slowly. The origin of the notion

of suspect classiﬁ cations is K

OREMATSU V. UNITED

STATES, 323 U.S. 214 (1944). In that case, the

Court upheld the federal government’s program

of excluding from their homes on the West Coast

persons of Japanese ancestry, accepting the mili-

tary’s (specious) arguments that they constituted

a threat to U.S. war efforts against Japan. The

opinion by Justice Hugo Black did, nonetheless,

assert that racial classiﬁ cations are suspect, that

they must be subjected to intense judicial scru-

tiny, and that they are justiﬁ able only if serving an

exceedingly important governmental interest as in

this case—victory against Japan.

Post–World War II United States was a very

different nation from post–Civil War United

States. The African-American soldiers who had

fought the racist regime of the Nazis returned to

an America where they continued to be second-

class citizens according to the laws of many states.

About the same time, the National Association for

the Advancement of Colored People (NAACP)

stepped up its program of legal challenges to

the doctrine of separate but equal, scoring some

important successes in the ﬁ eld of graduate and

legal education by pointing out the dramatic

inequalities of the separate facilities.

By the 1950s, the NAACP was ready for a

head-on challenge to separate but equal. In

ROWN V. BOARD OF EDUCATION OF TOPEKA, 347

U.S. 483 (1954), the Supreme Court held that,

at least in the ﬁ eld of public elementary and sec-

ondary education, separate educational facilities

were inherently unequal and thus a violation of

the Fourteenth Amendment. Subsequent deci-

sions called for the elimination of governmen-

tally mandated segregation in a variety of public

facilities, from courtrooms to restrooms. At the

same time, an invigorated civil rights move-

ment began pressing Congress for new laws that

would prevent discrimination by private actors,

culminating in such landmark laws as the Civil

Rights Act of 1964 and the Federal Open

Housing Act of 1968.

The 1970s saw an extension of equal protection

principles to a classification—gender—that the

Fourteenth Amendment’s framers would probably

never have foreseen. With the rise of the women’s

movement, challenges to gender-based classiﬁ ca-

tions were inevitable. Over several decades, the

Court developed for gender classiﬁ cations what

came to be known as an “intermediate” level

of judicial scrutiny, tougher than rational basis

review but not as strict as strict scrutiny. Interme-

diate scrutiny was consistent with the view that

discriminations based on outmoded stereotypes

about the “proper” role of women must be struck

down but that certain “real” differences between

the sexes must be acknowledged. In C

RAIG V.

BOREN, 429 U.S. 190 (1976), the Court held that

gender-based discriminations must “serve impor-

tant governmental interests” and be “substantially

related to the achievement of those objectives.” In

United States v. Virginia, 518 U.S. 515 (1996), Jus-

tice Ruth Bader Ginsburg moved the Court a little

closer to strict scrutiny review in holding that gen-

der classiﬁ cations can only be upheld on the basis

of “an exceedingly persuasive justiﬁ cation.” The

fact remains that a majority of the justices have

refused to consider gender-based discriminations

suspect in all circumstances.

It is unlikely that most of the framers of the

Fourteenth Amendment expected the equal pro-

tection clause to outlaw many of the forms of

racial discrimination that later courts did. Nor is

it likely that they expected the clause to be used

to defeat governmental programs designed to pro-

tect rather than harm racial minorities; the Con-

gress that proposed the amendment also enacted

a variety of such programs to aid former slaves (for

example, the Freedmen’s Bureau). The issue of

affirmative action (race-based governmental

equal protection 239

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programs designed to benefit racial minorities)

became a matter of increasing controversy in the

1970s. The Supreme Court’s tortuous decisional

route culminated in A

DARAND CONSTRUCTORS, INC.

V. PEÑA, 515 U.S. 200 (1995), where a majority of

the Rehnquist Court justices held that even

benign racial classiﬁ cations must be held to the

standard of strict scrutiny.

The barrier to afﬁ rmative action programs cre-

ated by strict scrutiny is formidable but not insur-

mountable, as the Court showed in G

RUTTER V.

BOLLINGER, 539 U.S. 306 (2003). By a 5-4 vote, the

Court upheld a law school admission program that

took race into account as one of many factors that

could contribute to a diverse student body, a gov-

ernmental objective deemed sufﬁ ciently compel-

ling to survive strict scrutiny. The crucial ﬁ fth vote

was provided by Justice Sandra Day O’Connor,

who retired from the Court in 2006.

For more information: Fallon, Richard H., Jr.

The Dynamic Constitution. New York: Cambridge

University Press, 2004; Nowak, John E., and Ron-

ald D. Rotunda. Principles of Constitutional Law.

St. Paul, Minn.: Thomson/West, 2005; Seidman,

Louis Michael. Constitutional Law: Equal Pro-

tection of the Laws. New York: Foundation Press,

2003.

—Philip A. Dynia

Escobedo v. Illinois 378 U.S. 478 (1964)

In Escobedo v. Illinois, the Supreme Court ruled

that the Sixth Amendment guarantees that a

person being held in police custody has a right

to remain silent and a right to speak to an

attorney.

In this case, the police denied the defendant

his right to visit with counsel during investigations

into an 11-day-old murder. The defendant had

been arrested for the murder but, at that time,

had made no statement and with his lawyer’s

efforts was able to get a writ of habeas corpus.

During interrogation, Danny Escobedo made

several requests to see and meet with his coun-

sel. The lawyer was within the building but was

repeatedly denied his right to visit with his client.

The 22-year-old defendant, Escobedo, later made

damaging statements to a government attorney

and confessed to the murder of his brother-in-

law for which he was being held after the police

had denied him opportunity to discuss strategy

or rights with his counsel. The defense counsel

argued that Escobedo was denied his rights as

they related to remaining silent and that the police

did not inform him of those rights.

The Supreme Court determined that Esc-

obedo had been denied his right to counsel

and highlighted the individual right to remain

silent from discussion. Justice Goldburg wrote for

the majority, and in his opinion, he offered that

the Sixth Amendment retained within the spirit

of the Constitution a set of absolute rights, and it

was through this lens, coupled with other cases of

the time, that the now-famous Miranda Warning

Card statement was created and must be read to

all arrestees.

The conviction that Escobedo had received

at the state level and was affirmed by the state

supreme court was overturned because the U.S.

Supreme Court recognized that protections within

both the Fourteenth and Sixth Amendments

and their aggregate rights implications had been

denied to the defendant. For example, without

counsel and under the pressure he faced through

interrogations and interviews, Escobedo had been

denied the right against self-incrimina-

tion. The Court believed that when a custodial

interrogation becomes more than just question-

ing or general inquiry, anyone in this space under

the suspicion of law enforcement is due a higher

care level. This landmark case became part of the

operational procedures within all law enforce-

ment when dealing with subjects under scrutiny.

The Court, furthermore, extended the exclu-

sionary rule within this case, establishing that

coerced confessions without the aid of counsel

were excluded from being evidence for further

law-enforcement prosecutions. The holding in

this case has helped to protect the individual

rights of those being detained or in the custody

of the police. It has encouraged more procedural

issues now recognized to be retained in the Fifth

Amendment.

240 Escobedo v. Illinois

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For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—Ernest Gomez

establishment clause

The establishment clause of the First Amend-

ment is one of the two clauses meant to address

the role of religion in U.S. society. Interpreting

what this clause mandates has been a source of

controversy on the Supreme Court.

The establishment clause is the portion of the

First Amendment that states: “Congress shall

make no law respecting an establishment of reli-

gion.” Together with the free exercise clause (the

following six words of the amendment), “. . . nor

prohibiting the free exercise thereof,” the estab-

lishment clause is intended to insure the religious

liberty of the American people. Though seemingly

simple and straightforward, the clause is far from

unambiguous in its meaning and implementation,

and its history may be best understood as a quest

by courts, lawmakers, scholars, and the public to

agree on how to deﬁ ne and apply it. The difﬁ culty

of this task has stemmed both from inability to

reach consensus about the establishment clause

itself and from inherent tensions between the

establishment clause and the free exercise clause.

There is general agreement that the establish-

ment clause prohibits the creation of an ofﬁ cial

church by the federal government, but beyond

that, conﬂ icts have emerged over the level of gov-

ernment affected, the meaning of “establishment

of religion,” and even the word respecting.

Initially, the establishment clause was assumed

to apply only to the federal government. Most col-

onies had established churches but disestablished

them in the 1780s and 1790s. Massachusetts, in

1833, was the last to do so. Issues concerning sepa-

ration of church and state arose from time to time

in the 19th century, but it was not until the 1940s

that the Supreme Court, using the Fourteenth

Amendment, specifically “incorporated” both

religion clauses (the establishment and free exer-

cise clauses) to apply to the states. When this

action was taken on behalf of the establishment

clause, in E

VERSON V. BOARD OF EDUCATION, 330

U.S. 1 (1947), the door was clearly open for legal

challenges that continue to the present.

In Everson, the Court set forth an expansive

view of the establishment clause that in varying

degrees continues to inﬂ uence jurisprudence in

this area. In a powerful and sweeping statement,

Justice Hugo Black began with the idea that nei-

ther the state nor federal government can set up

a church or “pass laws which aid one religion, aid

all religions, or prefer one religion over another.”

He detailed other forbidden activities, such as

levying taxes to support religion, and concluded:

“In the words of [Thomas] Jefferson, the

clause against establishment of religion by law was

intended to erect a ‘wall of separation’ between

Church and State.” Critics of this interpretation of

the establishment clause like to point out that, as

Black noted, the Constitution does not speak of a

“wall of separation” between church and state, and

indeed, this metaphor may have led to as much

conﬂ ict as the establishment clause itself has as to

what role religion should play in public life.

In 1971, the Court in L

EMON V. KURTZMAN, 403

U.S. 602 (1971), addressed the word respecting,

(meaning in this context “regarding” or “with

respect to”), explaining that a law did not have to

set up a state religion to be “respecting” an estab-

lishment of religion. Indeed, it might be merely

a “step that could lead to such establishment and

hence offend the First Amendment.”

Alternative interpretations of the establishment

clause have been offered by justices, lawmakers,

and others either from their own ideological per-

spectives or as advocates of “original intent,” the

idea that the Court’s task is to interpret the Con-

stitution as its creators would have done. This is

complicated, because a review of proposed word-

ings of the establishment clause by the ﬁ rst Con-

gress in 1789 indicates that not all drafters of the

First Amendment thought alike on this matter.

However, some clearly wanted to do more than

simply forbid an established church, and most

drafts that were considered used broader terms

than church, sect, or denomination.

Another recurring issue is the relation between

the establishment clause and the free exercise

establishment clause 241

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