Civil rights are defined as the “rights and freedoms accorded to free individuals in the state.”[1] In the United States, civil rights refer to Constitutional protections against government action and federal and state laws that protect against infringements by government and private actors. Constitutional civil rights are those expressed or implied by the Constitution, such as freedoms of speech and the press and the rights to due process and equal protection. These typically apply only to government action. Thus, for example, in most cases, a private company is under no obligation to allow its employees or customers freedom of speech. Federal and state legislation guarantee civil rights against private actors. For example, employment and housing discrimination is prohibited by federal civil rights legislation and city and state ordinances frequently provide additional protections in these areas. In this course, we will trace the history of civil rights court decisions and legislation and focus on the way they combine to establish a comprehensive framework of protection against government and private deprivation, discrimination and unfair treatment.

Historical Development of Civil Rights

Let’s begin our study of civil rights by looking back at the first mention of civil rights in the United States Constitution in the Bill of Rights. During the 1787 Constitutional Convention, concerns arose over a strong, central, federal government. To placate those worried about this, Founding Father James Madison proposed a Bill of Rights to the Constitution, which was ratified in 1791.[2] The Bill of Rights- the Constitution’s first ten amendments- guarantees civil liberties including freedom of religion, speech and press, the right to keep and bear arms and procedural protections in criminal cases, such as the warrant requirement for searches and seizures, the right to counsel, and the right to confront witnesses. The Fifth Amendment also provides procedural protections against unlawful federal government action and prohibits a person from being deprived of “life, liberty, or property” without “due process of law.”[3]

Subsequent Constitutional amendments have added to Constitutional civil rights protections. In the wake of the civil war, the 13th, 14th and 15th Amendments were passed by Congress and ratified by the states.[4] The 13th Amendment prohibited slavery and the 15th Amendment guaranteed men of all races the right to vote (women’s suffrage was not enshrined in the Constitution until decades later).[5] The Fourteenth Amendment granted federal and State citizenship to every person born or naturalized in the United States, forbade the States to make or enforce laws that “abridge the privileges and immunities of citizens of the United States,” guaranteed to each citizen the right to due process of law before being deprived by a state of the right to life, liberty, or property; and guaranteed equal protection of the laws to all people.[6]

Civil Rights Legislation

Constitutional rights typically only apply to government conduct. While states, for example, may not treat people unequally based on race, nothing in the Constitution prevents restaurants, hotels or employers from discriminating based on race. Protection of civil rights from private action requires intervention by the state and/or federal governments. Such intervention typically takes the form of legislation and administrative enforcement of such legislation. Civil rights legislation dates to the post-Civil War Reconstruction Era when Congress first prohibited discriminatory conduct by private parties.

The Civil Rights Act of 1866, the first major civil rights law that Congress ever passed,[7] guaranteed equal rights to citizens, regardless of race or color, to make and enforce contracts, to sue or to be sued, to give evidence in court, to inherit, purchase, own, sell and bequeath real and personal property and to conduct other daily activities that had previously been guaranteed only to Caucasians.[8]  The Enforcement Acts of 1870 and 1871 guaranteed the right to register to vote and protected new voters from intimidation and violence by placing the supervision of elections under federal control.[9] Finally, the Civil Rights Act of 1875 prohibited discrimination in some public accommodations and on public conveyances and also prohibited the exclusion of African-Americans from service on juries.[10]

In the 1900’s, civil rights were expanded for American women and youth. In 1920, the states ratified the Nineteenth Amendment,[11] which barred the state and federal governments from abridging or denying “the right to vote on account of sex.”[12] The Twenty-Sixth Amendment,[13] ratified in July 1971, guaranteed to citizens aged 18 years and older the right to vote (down from 21, which had been the voting age in some states).[14] While the United States cast a vision of equality in the Reconstruction Amendments and post-civil war legislation, resistance to the equal status of African-Americans and suppression and racial discrimination continued well into the twentieth century. The concern about the gap between the promise of equality and the reality of life for many African-Americans led to the rise of the modern movement to pass legislation to enforce equality under the law. The first impactful law was the Civil Rights Act of 1957, which created the United States Civil Rights Commission to study the problems of unlawful discrimination by states, particularly with respect to discriminatory interference with the right to register and take part in the voting process. The Act also created a new permanent unit, the Civil Rights Section, within the U.S. Department of Justice, charged with enforcing the Act’s ban on intimidating, threatening, or interfering with the rights of voters in federal elections.[15]

Next, the landmark Civil Rights Act of 1964 prohibited discrimination based on race, creed, color, religion, sex, or national origin in employment, public accommodations and education. This law also created the Equal Employment Opportunity Commission to enforce these new anti-discrimination laws through investigation and litigation and to serve as an informational clearing house on federal anti-discrimination requirements.[16] Third, the Voting Rights Act of 1965 suspended the use of literacy tests as qualifications to vote, authorized the use of federal agents to supervise the process of voter registration in states where such tests had been used and in states where fewer than half of eligible residents had registered to vote. Finally, the Act empowered the Attorney General to bring enforcement proceedings against the use of poll taxes and it imposed criminal penalties for violations of the Act.[17] Finally, the Civil Rights Act of 1968, also known as the Fair Housing Act, prohibited private discrimination based on race, color, religion, or national origin in the sale or rental of housing in the United States.[18] Additionally, federal law bars states and Native-American tribal governments from violating the constitutional rights of Native Americans.[19]

Heightened Judicial Scrutiny

State and federal laws can be challenged on the grounds that they violate people’s civil rights, including their rights to equal protection, due process or more specific rights such as the rights to free speech and religion. These challenges can take the form of lawsuits to stop government agents from enforcing a law, challenges to criminal convictions that were based on the law, or civil lawsuits for damages caused by enforcement of such a law. Regardless of the mechanism by which a law is challenged, it frequently falls to federal and state judges to assess the constitutionality of laws or ways in which those laws are applied. To aid in these often-complex analyses, the Supreme Court has adopted a tiered approach, with laws that are inherently more suspicious being viewed with more scrutiny than others. The rationale for taking a tiered approach was first established in a footnote in a comparatively insignificant case, United States v. Carolene Products.[20] That case involved the question of whether Congress had the power to regulate and punish the mislabeling of dairy products under its power to regulate interstate commerce. The Supreme Court held that it did, observing that it did not need to be hyper-vigilant in reviewing Congress’ economic regulations because those regulations are part of the political process, which, presumably, indirectly represent the will of the voters.

In perhaps the most famous footnote in world history, the Court conceded that there may be legislation that tends to “restrict those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and that, consequently, should be “subjected to more exacting judicial scrutiny.” It also observed that “statutes directed at particular religious or racial minorities” may require “more searching judicial inquiry” because “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”[21] In other words, the Court said that, normally, we can rely on elections, politics and constituencies to protect us from “bad” laws. But when “discrete and insular minorities” are targeted, they may not have the political clout to protect themselves from bad laws that discriminate against them. In addition, some laws may tend to curtail the democratic processes, such as laws that restrict voting rights or other fundamental freedoms. As such, it falls to the courts to be extra-vigilant when dealing with laws that target important rights or minority groups.

Levels of Scrutiny

Relying on the Footnote 4 rationale, the Supreme Court has developed a framework for scrutinizing all laws that are alleged to violate civil rights. The Supreme Court employs three levels of scrutiny to determine whether the law is sufficiently justified by its purpose and by the means employed to serve that purpose. The level of scrutiny is determined by how inherently suspicious the law is.

The three levels of scrutiny are rational basis reviewintermediate (or medium) scrutiny and strict scrutiny. Laws that are the least suspicious get rational basis review, which means that the law will be allowed to stand unless the person challenging the law can show that the law is not rationally related to a legitimate government interest. Laws subjected to rational basis review, in fact, rarely get struck down.[22] When a law is subjected to medium scrutiny, the government must show that it is substantially related to an important government interest. There are many examples of laws failing medium scrutiny, but a comparable number of cases where laws have passed medium scrutiny. Strict scrutiny is the highest level of scrutiny. To pass strict scrutiny, the government must show that its law is necessary, or “narrowly tailored” to achieve a compelling government interest. In other words, not only does the law have to secure a very important interest, it also must be the least restrictive way of doing it. Strict scrutiny is usually a death knell for a state or federal regulation.[23]

The default position is that a regulation will be subjected only to rational basis review unless the courts, usually the Supreme Court, determine that the type of rule deserves a higher level of scrutiny. Most government regulations, including almost all economic regulations, are subjected only to rational basis review. Categories of laws subject only to rational basis review also include laws based on age, disability, financial status or wealth and criminal history. For example, laws that require people to be 16 to drive or 18 to vote or 21 to drink will be subject only to rational basis review if challenged on equal protection grounds.[24] Intermediate scrutiny is traditionally applied to laws that discriminate based on sex.[25] In recent years, several courts, including two federal appellate courts, have applied medium scrutiny to laws that differentiate based on sexual orientation. This level of scrutiny has also been applied by the Supreme Court to regulations that differentiate between non-marital and marital children.[26] Medium or intermediate scrutiny has also been applied by lower courts to state regulation of sexually explicit, but not “obscene,” speech[27] and to certain types of content-neutral speech.[28] The Supreme Court first used intermediate scrutiny to strike down an Oklahoma statute that discriminated based on sex in setting the statutory age for consumption of alcohol.[29] The Act permitted women 18 years or older to consume alcohol but prohibited men under age 21 to do so. The State of Oklahoma sought to justify the disparity in permissible drinking ages based on the traffic court, criminal court, and insurance claims evidence that, the state asserted, justified the difference in treatment. The Court disagreed, finding that the underlying data was insufficient to show a substantial relationship between the law and the maintenance of traffic safety, and so was not substantially related to the achievement of an important objective.[30]

The highest level of scrutiny applied by courts to government actions or laws is called strict scrutiny. Strict scrutiny is applied to laws or government actions that discriminate based on race, national origin and citizenship status, though the last one only applies when the discrimination is carried out by a state government, rather than the federal government.[31] Strict scrutiny is also applied when a challenged law restricts or threatens the exercise of a fundamental right, such as freedom of speech or religion or the right to vote.

In our next module, we’ll learn about the “equal protection” clause of the Fourteenth Amendment. We’ll also continue our study of scrutiny of laws that may discriminate based on different classifications.

[1] Bouvier Law Dictionary.

[2] 1791: US Bill of Rights (1st 10 Amendments) – with Commentary, Online Library School of Liberty, (July 9, 2018), http://oll.libertyfund.org/pages/1791-us-bill-of-rights-1st-10-amendments-with-commentary.

[3] U.S. Cons. amend. I-X.

[4] Landmark Legislation: Thirteenth, Fourteenth, & Fifteenth Amendment, United States Senate, https://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm (last visited July 9, 2018).

[5] U.S. Const. amend. XIII; U.S. Const. amend. XV.

[6] U.S. Const. amend. XIV, § 1.

[7] Steven Calbresi and Andrea Matthews, Originalism and Loving v. Virginia, 2012 B.Y.U.L. Rev. 1393, 1404 (2012).

[8] Joseph Ranney, In the Wake of Slavery: Civil War, Civil Rights, and the Reconstruction of Southern Law 6 (2006).

[9] Landmark Legislation: The Enforcement Acts of 1870 and 1871, United States Senate, https://www.senate.gov/artandhistory/history/common/generic/EnforcementActs.htm (last visited July 9, 2018).

[10] Melvin I. UrofskyCivil Rights Act of 1875, Britannica, https://www.britannica.com/topic/Civil-Rights-Act-United-States-1875 (last visited July 9, 2018).

[11] U.S. Const., amend. XIX.

[12] Passed by Congress June 4, 1919, and Ratified on August 18, 1920, the 19th Amendment Granted Women the Right to Vote, OurDocumens.gov, https://www.ourdocuments.gov/doc.php?flash=false&doc=63 (last visited July 9, 2018).

[13] U.S. Const., amend. XXVI.

[14] The 26th Amendment, History.com, https://www.history.com/topics/the-26th-amendment (last visited July 9, 2018).

[15] Civil Rights Act of 1957, Eisenhower Library, https://eisenhower.archives.gov/research/online_documents/civil_rights_act.html (last visited July 9, 2018).

[16] Civil Rights Act of 1964, History.com, https://www.history.com/topics/black-history/civil-rights-act (last visited July 9, 2018).

[17] Voting Rights Act of 1965, History.com, https://www.history.com/topics/black-history/voting-rights-act (last visited July 9, 2018).

[18] Fair Housing Act, History.com, https://www.history.com/topics/black-history/fair-housing-act (last visited July 9, 2018).

[19] 1968: President Johnson Signs the Indian Civil Rights Act, National Library of Medicine, https://www.nlm.nih.gov/nativevoices/timeline/516.html, (last visited July 9, 2018).

[20] United States v. Carolene Products Co., 304 U.S. 144, 147-48 (1938)

[21] Id. at 152 n.4.

[22] Katie Eyer, The Canon of Rational Basis Review, 93 Notre Dame L. Rev. 1317, 1318-19 (2018).

[23] Linda Napikoski, Craig v. Boren, Thought Co., (Dec. 27, 2017), https://www.thoughtco.com/craig-v-boren-3529460.

[24] Brett Snider, Challenging Laws: 3 Levels of Scrutiny Explained, Find Law, (Jan. 27, 2014), https://blogs.findlaw.com/law_and_life/2014/01/challenging-laws-3-levels-of-scrutiny-explained.html.

[25] See Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004); Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012)

[26] Matthews v. Lucas, 427 U.S. 495, 510 (1976)

[27] Am. Library Ass’n v. Reno, 33 F.3d 78, 84 (D.C. Cir. 1994)

[28] Rappa v. New Caste County, 18 F. 3d 1043, 1053-54 (3d Cir. 1994)

[29] Craig v. Boren, 429 U.S. 190, 190 (1976).

[30] Id. at 201-02.

[31] Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793 (2006).