Equal Protection Analysis Under Both the Equal Protection Component of the Fifth Amendment Due Process Clause and the Fourteenth Amendment Equal Protection Clause
Three standards of review are used in Equal Protection analysis:

A. Minimum Scrutiny Test (or Rational Basis or Minimal Rationality Review).  This standard of review is used to examine laws that discriminate against nonsuspect classes including economic classifications as well as classifications based on age, wealth, and mental disability. The standard of review requires that the use of the classification be rationally related to a legitimate government justification. Equal protection analysis is comparative, focusing on whether there is a rational reason for the difference in treatment between those the law applies to and those it doesn’t apply to in light of the purpose of the law.  In applying this low level of scrutiny, a court can hypothesize about the reason for the use of the classification rather than limit its consideration to actual reasons for the use of the classification scheme. Moreover, a classification can satisfy the test even if it as very inexact. It can include in the discriminated against class many people who do not deserve to be included (overinclusive) while failing to include in the class many people who do deserve to be included (underinclusive). Under the minimum scrutiny standard, to win the challenger must show either:

1. There is no legitimate purpose for the law. This was part of the Court's reasoning in U.S. Department of Agriculture v. Moreno, for example, where the Court found that one purpose of the law was the desire to harm a politically unpopular group. The Court concluded that such a purpose was illegitimate under the Equal Protection Clause (see also Romer v. Evans for a similar conclusion); or

2. The classification scheme does not rely on a difference that is at all designed to achieve the state’s purpose so that the classification is not rationally related to the state’s objective. In Moreno, for example, the law relied on the difference between households of related persons and households with at least one unrelated person, but that difference was not rationally related to the government’s objectives of encouraging the purchase of agricultural products or encouraging good nutrition. In the Court's view, the use of the classification actually undermined those purposes.

B. Intermediate Scrutiny Test.  Intermediate scrutiny is used to review laws that utilize classifications based on gender (this standard is used whether the law discriminates in favor of men or in favor of women)  and other quasi-suspect (also referred to as semi-suspect) classifications. The intermediate scrutiny standard of review requires that the use of the classification be substantially related to an important governmental justification. Under this form of rigorous scrutiny, the burden of proof is on the government to show both an important objective and that the use of the classification is substantially related to that objective (Craig v. Boren). In describing the burden on the government to justify classifications based on gender, the Court in United States v. Virginia used the phrase "exceedingly persuasive justification" to describe the required showing that the government must make. In this analysis, the challenger can present less discriminatory alternatives to the Court and argue that the use of the classification is not substantially related to an important objective because the government does not have to use the challenged classification to achieve its objective since, for example, gender neutral means are available. The government can defend by showing that the less discriminatory alternatives would be less effective or that the use of the classification is substantially related to its important objective even though there is not a perfect fit between the classification and the important objective. The challenger can also make the following types of arguments to show that the government cannot satisfy the intermediate scrutiny standard: (1) the state’s objective is not important because it would reinforce archaic stereotypes or overbroad generalizations about the proper roles of men and women, (2) the important purpose asserted by the government is not the actual purpose for the enactment of the law, or (3) the government seeks to achieve an objective (such as administrative convenience) that is not sufficiently weighty and the government can defend by arguing that its actual objective is important because, for example, its objective is to help and not harm women. In the gender discrimination cases, the Court is more sympathetic to different treatment rooted in biological differences rather than socially constructed differences, although sometimes it is hard to distinguish between these two sources of difference. Intermediate scrutiny, unlike strict scrutiny, does not require that the use of the classification must be necessary to the accomplishment of the governmental objective, however, the use of the classification has to create a fairly close fit between the class being regulated and the governmental objective sought to be achieved. Unlike under rationality review, under intermediate scrutiny the classification cannot be substantially overinclusive or substantially underinclusive, but has to be drawn more exactly in relation to the governmental purpose.   

C. Strict Scrutiny Test.  Under strict scrutiny review, used to review laws that utilize classifications based on race or ethnicity and other suspect classifications, the standard of review is whether the use of the classification is narrowly tailored to achieve a compelling government objective. In these cases, the government sometimes lacks a compelling objective and may even lack a legitimate one (as in Loving v. Virginia where the objective was to maintain white supremacy).  In addition, even if the government has a compelling interest, it cannot use a suspect classification if there are any other means available to the government to achieve its compelling objective. Therefore, when the government employs a racial classification, it must prove that no race neutral means would achieve its objective and that no less discriminatory race-conscious equally effective solution is available either. To show that no race neutral means are available (or less discriminatory race-conscious means), the government must show that it seriously considered available alternatives, but need not show that it actually tried the available alternatives.

D. Identifying the Nature of the Classification.  Under equal protection analysis, the most critical factor is the nature of the classification because it controls the choice of the standard of review. You should start by identifying the classification - what groups are treated differently under the law - with one group winning and the other group losing in that it is receiving worse or disadvantageous treatment. You then need to identify the basis for the difference in treatment - what trait distinguishes the winners from the losers? That is the trait that serves as the basis for the classification scheme.
Once you identify the basis for the classification, you must figure out whether the group discriminated against is a suspect class, a quasi-suspect class or a nonsuspect class. You then need to apply the appropriate level of scrutiny to evaluate the constitutionality of the law. If the classification singles out a trait, like race, which the Supreme Court has already found to be suspect, you should apply strict scrutiny without any need to argue that the classification should be subject to strict scrutiny because racial classifications have characteristics that merit suspect class treatment. Since the Court has already established that race is a suspect class, there is no need to make such an argument. In the same way, you need not establish that gender is a quasi-suspect class or age is a nonsuspect class. However, if the classification at issue does not obviously, based on precedent read during the semester, belong in one of the three groups, but appears at first glance to have some similarities to classifications such as race or gender that have been considered suspect or quasi-suspect, you should evaluate the characteristics of the classification to determine its constitutional status. This requires that you evaluate the status of the class for equal protection purposes using the characteristics that the Court has used to determine if a classification is suspect, quasi-suspect or nonsuspect. While the Court has not created a specific list of the characteristics of a suspect or quasi-suspect class, and lower courts vary in how they analyze such cases, such a list can be extrapolated from the characteristics that have been employed by the Court in deciding whether gender classifications and other equal protection classifications will be be treated as suspect, quasi-suspect, or nonsuspect. A list of 5 questions to ask, questions that focus on 5 characteristics of a suspect class, can be derived from past cases:

(1) has the group singled out suffered from a history of discrimination;
(2) does the trait generally bear no relationship to a person's ability to contribute to society;
(3) is the trait often singled out to reinforce prejudice against the group or label the group as inferior;
(4) is the group politically powerless by its numbers in the population, by under-representation in government, or by its inability to influence the legislative agenda; and
(5) is the trait shared by the group a distinct trait and one over which its members have no control, an immutable or unalterable characteristic, or a trait that is central to personal identity.

In answering these 5 questions, the inquiry is based on the general characteristics of the class and the treatment of the class throughout American history. This inquiry does not involve the specifics of the law being challenged. In analyzing whether the classification is suspect, quasi-suspect, or nonsuspect, it is irrelevant whether the law being challenged labels the members of the class as inferior, or whether the trait bears no relationship to the ability to engage in the regulated activity. Answering the 5 questions focuses on whether the law has generally singled out the trait as a way of labeling the group as inferior and whether the trait, as a general matter, is unrelated to a person's ability to contribute to society. The specific aspects of the law being challenged as it applies to the class that it discriminates against are only relevant once the standard of review has been identified and that standard is being applied to the challenged law. This is why once a class has been categorized as suspect, quasi-suspect, or nonsuspect and a standard of review has been identified as applicable to discrimination against that class, that standard applies in all cases in which the class is the victim of discrimination.      
Groups that share most of, but not all, of these characteristics may be quasi-suspect (like gender) and discrimination against them may merit intermediate scrutiny review. Realistically, quasi-suspect status is the most a challenger can hope to achieve out of this analysis since the Court has shown itself to be unwilling to add to the category of fully suspect classes. In cases where the challenger argues that a class is quasi-suspect, but cannot know that the argument will succeed, the challenger will attempt to argue that the law is unconstitutional under both intermediate scrutiny and minimum scrutiny. Similarly, in cases where the government argues that a class is nonsuspect, but cannot know that the argument will succeed, the government will attempt to argue that the law is consitutional under both minimum scrutiny and intermediate scrutiny.
E.  Purposeful Discrimination.  The Equal Protection Clause is only violated by purposeful discrimination. This is usually obvious because (1) the discrimination is apparent on the face of the statute (Loving) or (2) the discrimination is admitted by the government official whose action is being challenged (Palmore v. Sidoti). However, in cases where the challenger asserts that the invidious discrimination is covert, the challenger must introduce evidence to show a discriminatory purpose. Such evidence can take the form of, for example, statistical proof that the law is being applied in a racially discriminatory way even though it is neutral on its face (Yick Wo); statistical evidence that a facially neutral law has a disproportionate impact on members of a particular race or gender (Washington v. Davis); evidence of irregularities in substance or procedure; or statements by some of the decisionmakers. The government can introduce evidence to overcome the prima facie case established by the challenger by showing an absence of a discriminatory purpose (Washington v. Davis) or by showing that the government would have made the same decision in the absence of a discriminatory purpose.

On the exam, most equal protection questions will involve overt discrimination (the classification is apparent on the face of the statute) where there is no need to introduce evidence of purposeful discrimination.  If there is an issue about covert discrimination, you will be given some facts about the administration of the statute, arguably showing disproportionate impact, or facts about the legislative history of the statute, arguably suggesting some purpose other than the admitted purpose for the law such as a statement by the law's proponent that suggests racial  or gender bias.

F.  Benign Discrimination or Affirmative Action.  While invidious discrimination is the first concern of the Equal Protection Clause, benign discrimination is also actionable. In cases of benign gender or racial discrimination or affirmative action, the Court applies the same standard of review (strict scrutiny for race and intermediate scrutiny for gender) it would use to evaluate cases of invidious discrimination.

1. In applying the intermediate scrutiny test to gender discrimination the government contends is benign, the Court will make sure that the actual purpose and effect of the law is to help and not hurt women, that the law does not reinforce archaic stereotypes (Mississippi University for Women v. Hogan), and that the important purpose cannot be achieved by means that do not employ a gender classification such as individualized review rather than class-based generalizations.

2. In applying the strict scrutiny test to racial discrimination the government contends is benign, the following general statements can be made:
(1) The Court finds few ends to be compelling. Among the few recognized compelling objectives are remedying past invidious discrimination by the specific government entity engaging in the affirmative action and a college or university seeking to achieve diversity in its student body (Grutter);
(2) An admitted discriminator (e.g., a state school that previously refused to admit minority students or a government employer who in the past has refused to hire minority employees) will have considerably more latitude to remedy its own past discrimination than a government entity that has no such history of discrimination;
(3) Racial quotas are rarely if ever an acceptable means; and
(4) While other less drastic race-conscious remedies may be necessary (such as race as a plus on the scales), before upholding such a measure, the court will require the government to consider available race neutral means and find that race neutral means will not be as effective in achieving the government’s compelling purpose.
(5) Even if the government demonstrates that it is necessary that it use race-conscious means to achieve its compelling purpose, it will be required to use the most narrowly tailored (least discriminatory) race-conscious means available to achieve its purpose. In Grutter, the Court accepted Michigan’s argument that no race neutral means would achieve the university’s educational objective. While the Court upheld the use of race in the University of Michigan’s Law School application process, it found unconstitutional the undergraduate admissions process in Gratz. The Court concluded that the holistic approach used by the Law School, where race was one factor among many weighed in assessing student diversity and diversity was one factor among many factors used to decide whether to admit a particular applicant, was constitutionally acceptable as the most narrowly tailored (least discriminatory) race conscious means available because the admissions process only considered race as one factor among many and did not assign a specific number of points to that factor. By contrast, it struck down the undergraduate admissions system where being a member of a historically under-represented race was worth 20 points without regard to the individual circumstances of particular applicants. The undergraduate point system was viewed as closer to the quota system struck down in Bakke.