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.
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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.[1]
Some of the criteria that have been cited include:
The Supreme Court has recognized 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. [4] The U.S. District Court for the District of Nebraska held the same in Citizens for Equal Protection v. Bruning,[5] but was reversed on appeal by the United States Court of Appeals for the Eighth Circuit.[6]
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 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 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).
Intermediate scrutiny is applied to groups that fall under a "quasi-suspect classification." Gender [7] and marital status of someone's parents at birth have been held to be Quasi-suspect classes.
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 ex-felons.
The practical result of this legal doctrine is that government sponsored discrimination on the account of a citizen's race, skin color, ethnic, 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.
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 gender-based stereotypes.
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.
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 classifies sexual orientation as a suspect class under state law. Connecticut and Iowa classify sexual orientation as a quasi-suspect class under their respective state laws.[8]