Equal Protection: Not All Discrimination Is Illegal?!

What Does Equal Protection Under the Law Actually Mean??

At first glance, the Equal Protection Clause of the 14th Amendment sounds straightforward: no state shall "deny to any person within its jurisdiction the equal protection of the laws." It’s a soaring promise—one of fairness, of justice, of legal equality. But like so many things in the Constitution, applying that principle in the real world is far from simple.

If we all have “equal protection,” why is it legal to treat people differently based on age? Why can 16-year-olds drive but not vote? Why can Social Security benefits differ based on birth year? Why can the government discriminate at all?

That’s the key: some discrimination is legal—at least, under constitutional law. The Equal Protection Clause doesn’t prohibit all government classifications. It prohibits unjustified ones—especially those that target groups that have historically faced discrimination.

Not All Discrimination Is Created Equal

The courts have developed a framework for deciding when government classifications violate the Equal Protection Clause. It’s called the tiers of scrutiny, and it’s all about how skeptical the courts should be when the government treats people differently.

At the top is strict scrutiny—the toughest standard. It applies when the government classifies people by race or national origin. If a law singles people out this way, the government must prove it has a compelling interest and that the law is narrowly tailored to achieve it. Very few laws survive this test. And that’s the point. History has taught us how dangerous race-based laws can be—so the bar is intentionally high.

But what does that mean in practice?

Let’s say the government wants to prevent terrorist threats and decides to ban all people from a particular country from entering the U.S. National security might be considered a compelling interest—but the law would still fail if it's not narrowly tailored.

Narrowly tailored means the law must be precise. The government can’t use a sledgehammer where a scalpel would do. If there are less discriminatory ways—like individualized background checks or visa interviews—then a blanket ban likely goes too far. The court would ask: Could the government accomplish its goal without sweeping up innocent people who pose no threat? If so, the law is too broad and fails strict scrutiny.

In short, strict scrutiny doesn’t just ask, “Is this important?” It asks, “Is this the least harmful way to achieve that important goal?”

In the middle is intermediate scrutiny, used for classifications based on gender or legitimacy of birth. Here, the government must show that the law serves an important interest and is substantially related to that goal. It’s still a serious test—but more forgiving than strict scrutiny.

And at the bottom is rational basis review. If a law treats people differently based on age, economic status, or other factors not tied to a “suspect class,” the government only needs to show that the law is rationally related to a legitimate purpose. Most laws pass this test.

So yes, laws that treat juveniles differently, or set retirement ages, or provide different benefits based on income can still be constitutional. The Equal Protection Clause doesn’t require identical treatment. It requires justified treatment.

Suspect Classes, Protected Groups, and Power

Over time, the courts have identified certain groups as needing extra protection—so-called suspect classes. These are groups that have been historically marginalized, politically powerless, or subjected to prejudice. Race and national origin are the clearest examples, but gender, sexual orientation, and other categories have increasingly come under the Equal Protection umbrella.

Which brings us to a core tension in equal protection law: equality versus equity. Is the government promoting equality if it treats everyone exactly the same? Or does equality sometimes require different treatment to account for past and present disparities?

A Few Landmark Cases

Let’s look at how the Supreme Court has wrestled with these questions.

In Brown v. Board of Education (1954), the Court unanimously held that racial segregation in public schools violated the Equal Protection Clause. “Separate but equal” wasn’t equal at all. Brown didn’t just desegregate schools—it marked a turning point in the constitutional understanding of race and education.

Loving v. Virginia (1967) struck down laws banning interracial marriage. The Court made it clear: when the government classifies by race, strict scrutiny applies—and the state's justifications better be compelling. Virginia’s weren’t.

In United States v. Virginia (1996), the Court applied intermediate scrutiny to strike down the Virginia Military Institute’s male-only admissions policy. The Court said the state couldn’t rely on outdated gender stereotypes to justify exclusion.

And in Obergefell v. Hodges (2015), the Court recognized same-sex couples’ right to marry—citing both equal protection and due process. It was a reminder that equality under the law is a living concept, shaped by evolving understandings of liberty and dignity.

So… What Does Equal Protection Mean?

It means laws can’t arbitrarily single out people. It means the government must justify why it treats people differently—and those justifications are subject to greater or lesser scrutiny depending on who is being affected.

It means that legal equality isn’t always about sameness. Sometimes, it’s about acknowledging difference—and making sure that difference isn’t used as a weapon.

In short, equal protection is one of the Constitution’s most powerful tools for expanding rights and challenging injustice. But it’s also one of the hardest to define in practice.

And that’s what makes it worth studying.