In this thread on raising the age to purchase tobacco, I asked whether the equal protection clause of the 14th amendment made it unconstitutional to impose legal restrictions based on age. Rather than hijack that thread further, I’m starting a separate one.
Clearly, the answer is no, because we have all sort of distinctions in the law based on age at the federal, state, and local levels – from labor laws, to tobacco and alcohol purchases, to voting rights, to criminal codes…
But what is the basis in law for this distinction? My google searches have taken me to advocacy sites like YouthRights.org,which fight against such distinctions. I can’t find any factual answers. What is the constitutional basis by which we can make laws that discriminate against one class (age) but not others (race, gender, religion)?
FWIW, my interest in this subject is prompted by an ongoing discussion with my twelve year old son, and I’d like to be able to give him a factual answer.
Basically, a long line of judicial decisions outlining what is and what isn’t acceptable under the 14th Amendment. When you get down to it, quite a few laws treat one class or group differently than another. As an extreme example, laws against homicide treat people who commit murders differently from people who don’t. 14th Amendment Equal Protection (and for the federal govenment, 5th Amendment Due Process) doesn’t require that everyone be treated exactly the same under all circumstances, but rather that similarly situated persons should be treated the same in similar situations absent a showing af varying degrees of good cause as to why they shouldn’t be, depending on what the classification is.
Race is a good example of what we call a “suspect classification.” If a state takes an action that discriminates against a class of persons based on race, that action is a suspect classification and will be judged by a standard of strict scrutiny. The action must be narrowly tailored to achieve a compelling governemnt interest, and there can be no less restrictive means available to acheive that interest.
Gender isn’t a suspect classification subject to strict scrutiny, but rather a “quasi suspect classification” subject to “intermediate scrutiny.” A state action discriminating on the basis of gender is subject to intermediate scrutiny, meaning the action must be substantially related to an important governement interest.
So to answer why age is so often the subject of discriminatory laws, it’s because the U.S. Supreme Court has repeatedly ruled that it isn’t a suspect or quasi-suspect classification, e.g. Massachusetts Board of retirement v. Murgia, 427 U.S. 307 (1976) (ruling that a police officer can be forced to retire at 50 even if shown to be physically fit as a younger officer), and Gregory v. Ashcroft, 501 U.S. 452 (1991) (ruling that requiring state judges to retire at 70 is constitutional). Age is subject to lowest level of scrutiny, the “rational relation test” that any discriminatory classification that is not suspect or quasi-suspect is subject to (although there are some distinctions between rational relation “with and without teeth” I’ll leave alone for now). The only way a law or state action will be struck down under a rational relation test is if it bears no rational relationship to any conceivable government interest, which doesn’t happen all that often.
Since you’re basing your question on the 14th Amendment, here, for reference, is the relevant section:
To me, this raises the question of what the “privileges and immunities of citizens” are. I am not a constitutional lawyer, but I would guess that these privileges are whatever is specified elsewhere in the Constitution as applying to all citizens of the U.S.
Another interesting case regarding the rights of minors is Hazelwood v. Kuhlmeier, http://www.landmarkcases.org/hazelwood/home.html. It involved the first amendment rights of students on the school newspaper staff. At the time, it was a bit controversial, but has yet to be overturned.
Um, very few, actually, thanks to The Slaughter-House Cases, 83 U.S. 36 (1873). In these early tests of the 14th Amendment, the Supreme Court ruled that the “privileges and immunities” clause only prevented the states from infringing upon your privileges and immunities you have as citizens of the United States. These are very limited. You have the right to “travel”, that is, you have the right to pick up and move to another state, and the state can’t preclude you from so doing (the textual authority for this is also found in the Fourteenth Amendment, Section 1, “and of the state in which they reside.”). Other “privileges and immunities” of national citizenship were suggested by the Court in the Slaughterhouse cases, and still others can be found at the Analysis of the Constitution (particularly at p. 1675-6) prepared by the Congressional Research Service of the Library of Congress. A more general link to that reference should be bookmarked; it’s one of my first “go-to’s” when researching constitutional law.
Back to the OP:
pravnik does a good job explaining the various tests used by the courts for determining if a law violates the Equal Protection Clause of the 14th Amendment. The underlying reasoning is as follows:
All laws discriminate. That is, all laws draw a line between two classes of people, and treat the classes differently. Thus, a law making murder illegal, and providing a punishment for conviction of murder discriminates against convicted murderers. To “discriminate” in the strict legal sense is simply to make a distinction. So one cannot help but discriminate when making laws.
If the words “nor deny to any person within its jurisdiction the equal protection of the laws” meant that all people had to be treated equally, we’d be in a mell of a hess. No law could be passed, because no law could exist that didn’t treat some person, somewhere, differently from other people. So, when the Supreme Court was trying to figure out just what this clause meant, clearly it had to discard the notion that it meant everyone gets treated equally. Clearly, on some occasions, some people get to be treated differently.
Currently, the rubric used by the Court starts from looking at the 14th Amendment as an attempt to remedy pre-Civil War treatment of African Americans. Thus, at its core, the clause must have some purpose in preventing the sort of treatment “blacks” both prior to the war if free, and after the war, all of them being free. The “suspect classification” concept starts with an assumption that drawing a line on the basis of race, for the purpose of inflicting detrimental treatment to minority races, is the sort of behavior the amendment was attempting to correct. Of course, currently the Court is extending that concept to mean that ANY line drawn on the basis of race, regardless of who it affects adversely, is to be subjected to strict scrutiny (I love when conservatives end up liberalizing constitutional law). But that debate is for another thread.
Which brings us to age as a discriminating factor. Clearly, we recognize that it isn’t always an advisable practice. Several states have statutes which protect against discrimination on the basis of advanced age. But, by the same token, clearly our society understands that it cannot allow youth the same treatment under the law as it provides to adults. This is both sword and shield: youth can’t drink, but youth also aren’t usually punished the same way as adults for identical crimes. This disparity in treatment is not new; youth have been treated differently since the beginning of the development of legal codes.
So far, the Supreme Court of the United States has refused to elevate “age” at either end to a protected status, other than in the most weak ways. While the state can’t treat youth indiscriminately poorly, very little in the way of “protection” from state action exists as a result of the 14th Amendment’s equal protection clause. Likely, that will not ever change, which is why you won’t find 12 year olds driving our roads in the family’s Porsche.