Equal Protection: Choose the Classification Before You Choose the Scrutiny

# Equal Protection: Choose the Classification Before You Choose the Scrutiny

Equal Protection analysis goes wrong when students see an unfair law and immediately announce strict scrutiny. The level of scrutiny depends on the classification and the right implicated, not on how harsh the result feels.

Identify the classification

Ask how the law distinguishes among people. Some classifications receive heightened scrutiny; many receive rational-basis review. If the classification is facially neutral, a different analysis may be required to establish discriminatory purpose.

State the correct test precisely

Strict scrutiny requires a compelling governmental interest and narrow tailoring. Intermediate scrutiny and rational-basis review use different standards. Do not mix the language from one test into another.

Apply both the interest and the fit

A strong answer evaluates what the government says it is trying to accomplish and how closely the classification relates to that objective. Students often analyze the interest but barely discuss tailoring or fit.

The sequence is classification, level of scrutiny, governmental objective, and fit. Start there before adding doctrine-specific details.