Discrimination on the Basis of Sex, Sexual Orientation, and Other Characteristics
Translating1 Equal Protection
Race discrimination was the original target of the Equal Protection Clause of the Fourteenth Amendment and remains in modern times the archetypal example of the type of discrimination the clause was designed to forbid. The nondiscrimination principle implicit in equal protection, however, has never been limited to race. Nowhere in the clause is race mentioned (unlike in the Fifteenth Amendment, which forbids discrimination in voting only on the basis of race), and there is no reason that the broad structural principle of equal protection has application only to groups defined by race. It is true that early in its history, the Supreme Court did suggest that the Equal Protection Clause should be so limited; indeed, the Court suggested that the clause prohibited only discrimination against African Americans, not even any other racial group. That position, however, was rejected soon thereafter, when the Supreme Court applied the Equal Protection Clause to protect Chinese laundry owners against racial discrimination, and by the time of the World War II Internment cases, the Court was able to invoke equal protection principles in evaluating (though upholding) discrimination on the basis of national origin against Japanese Americans, without dissent on this point. Today, moreover, it is well accepted that neither the text nor the purposes of the Equal Protection Clause limits its scope to race discrimination alone. This chapter considers what other forms of discrimination are sufficiently similar to race discrimination so as to fall within the purview of the Equal Protection Clause.
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