1459 In Nebbia v. New York, 291 U.S. 502, 537 (1934), regarding the limitations of the due process clause, the Court held that “absent other constitutional restrictions, a state is free to pursue any economic policy that may reasonably be considered charitable.” 1388 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974). In contrast, Marshall J. protested that the wording cited represented “a radical change from the precedent that state approval and approval of `private` conduct were considered support for the determination of state action.” Id., p. 369. In der Rechtssache Cantor v. Detroit Edison Co., 428 U.S. 579 (1976), the majority opinion used much of the same analysis to deny antitrust immunity for a procurement practice that had been approved only by the Regulatory Commission but was not mandatory, but most judges were of a different view on the same issue in both cases. Affirmative action is the consideration of race, gender or other factors for the benefit of an underrepresented group or to address past injustices committed to that group. People who belong to the group are preferred to those who do not belong to the group, for example in educational admissions, recruitments, promotions, contracts and others.
[84] Such a measure may be used as a “decision test” when all other factors are inconclusive, or achieved through quotas that attribute a number of benefits to each group. During Reconstruction, Congress passed race-conscious programs primarily to help newly freed slaves who had been deprived of many personal benefits earlier in life. Such legislation was enacted by many of the same people who formulated the equality protection clause, although this clause does not apply to these federal laws, but only to state legislation. [85] Similarly, the equality clause does not apply to private universities and other private enterprises, which are free to take positive action unless prohibited by federal or state law. It may seem contradictory that the equal treatment clause provides for equal voting rights; After all, it seems to render the Fifteenth Amendment and the Nineteenth Amendment obsolete. In fact, it is on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan (grandson of former Justice Harlan) relied in his dissent from Reynolds. Harlan cited the 1866 congressional debates to show that the authors had no intention of extending the equality clause to the right to vote, and with respect to the Fifteenth and Nineteenth Amendments, he stated: 1486 Craig v. Boren, 429 U.S. 190, 197 (1976).
Justice Powell noted that precedents should make it clear that sex classifications are subject to more critical scrutiny than when “fundamental rights” and “suspect classes” are absent, id. 210 (agreed), adding: “As is apparent from our opinions, the Court has struggled to agree on a standard of analysis of the same protection that can be consistently applied to the multitude of legal classifications. There is good reason to be dissatisfied with the “two-step” approach, which has played a prominent role in the Court`s judgments over the past decade. While this approach is seen by many as a results-oriented substitute for more critical analysis, it – with its narrowly defined “higher level” – now enjoys significant previous support. As with Reed and his descendants, our decision today will be seen by some as an “intermediate” approach. While I do not support this characterization and would not be in favour of further subdividing the analysis of equal protection, openness forces us to recognize that the relatively respectful standard of review on “rational basis” that is usually applied is more prominent when we discuss sex classification. That is what emerges from our recent cases. Id., p. 210, n.*. Justice Stevens wrote that, in his view, the two-step analysis does not describe a method for deciding cases, “but rather a method that the court has used to explain decisions that actually apply a single standard in a reasonably consistent manner.” Id., pp. 211-212.
Burger and Rehnquist C.J. would apply the rational basic test for sex classification. Id., pp. 215, 217 (different). Sometimes the Court appears to apply a rational basic standard on the basis of the subject matter in question, if not on doctrine, e.g. Rostker v. Goldberg, 453 U.S. 57 (1981) (military); Michael M. v. Superior Court, 450 U.S.
464 (1981) (Application of legal prohibition of rape to boys, but not to girls). Four judges in Frontiero v. Richardson, 411 U.S. 677, 684–87 (1973), were willing to view sex as a suspect classification, and in Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982), the Court seemed to leave open the possibility that at least some gender classifications could be considered suspect. Certainly, a law passed by a state legislature that determines a discriminatory outcome is state action and would violate the first section of the Fourteenth Amendment.1343 Moreover, the actions of other branches of government “by any instrument or in any manner that such actions may be taken” may lead to a conclusion of “state action.” 1344 The difficulty for the Court, however, lay in the fact that the conduct complained of was not so clearly the act of a State. For example, is it an action of the state if the act of a petty government official has not been authorized or perhaps even prohibited by state law? What happens if a private party discriminates while in a special relationship with the government agency? “The decisive precondition is the responsibility of the state,” Justice Frankfurter once wrote, “that somewhere, somehow, to some extent, there should be an infusion of behavior of officials associated with state power into a plan” to deny protected rights.1345 Four of the thirteen original states have never passed laws prohibiting interracial marriages, and the other states were divided on this issue during Reconstruction.
[26] In 1872, the Alabama Supreme Court ruled that the state`s prohibition of interracial marriage violated the “cardinal principle” of the Civil Rights Act of 1866 and the equal protection clause. [27] Nearly a hundred years passed before the U.S. Supreme Court followed the Alabama case (Burns v. State) in Loving v. Virginia. In Burns, the Alabama Supreme Court stated:[28] 1488 On rigorous examination, see, for example, Sugarman v. Dougall, 413 U.S. 634 (1973); Nyquist v. Mauclet, 432 U.S.
1 (1977). Application of lenient scrutiny in cases involving restrictions on the entry of aliens into the political community, see Foley v. Connelie, 435 U.S. 291 (1978); Ambach v. Norwick, 441 U.S. 68 (1979); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). See also Plyler v. Doe, 457 U.S.
202 (1982). 1531 The Court confirmed the mobile analysis that the “fundamental interests” aspect of the enhanced equality protection analysis requires an indication of intent if the classification criteria are neutral and, in this case, have not reached the Fifteenth Amendment issue. 458 U.S. to 619 n.6. Towards the end of Warren Court, there was a tendency to treat classifications based on nationality or alienation as suspect,1479 to give classifications based on sex a somewhat tighter traditional scrutiny, while suggesting that a higher standard might be appropriate if such classifications passed a lenient examination1480 and that the legal and administrative treatment of illegitimate persons was inconsistent. 1481 The wording of a number of opinions seemed to indicate that poverty was suspect. 1482 Harlan also relied on the fact that Section Two of the Fourteenth Amendment “expressly recognizes the power of states to deny or limit in any manner the right of their inhabitants to vote for `members of the legislature [of the State].`” [71] Section two of the Fourteenth Amendment contains a specific federal response to such state action: reducing state representation in Congress.