Does the Equal Protection Clause prohibit only racial discrimination? Does it apply to private action?

…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

• Fourteenth Amendment to the United States Constitution

You may have heard arguments that the Equal Protection Clause of the Fourteenth Amendment was passed after the Civil War as part of the plan to remove any “badges of slavery” and, therefore, only intended to prohibit the government from discriminating based on race or national origin. On the other side of the coin, you may have heard arguments that because of such purpose, the Equal Protection Clause prohibits discrimination by private businesses, as that is considered by some to be a “badge of slavery.” Both arguments amount to the same fallacy: using a purpose to contradict the legal text. Although pointing to a purpose to supplement the text or fill in gaps is one thing, doing so to contradict it is another.

Other Provisions

What is a good way to help determine what a provision in the Constitution means? Other provisions. Compare and contrast the wording of one clause with another: if the words of one provision are broader than those of another, that provision was probably meant to have a wider application; if two clauses use the same wording, they were probably intended to apply just as broadly or narrowly. That is known as intratextualism. For Equal Protection, one need look no further than the other Civil War Amendments, the 13th and 15th:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

• Thirteenth Amendment to the United States Constitution

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

• Fifteenth Amendment to the United States Constitution

Compare and Contrast

With all the relevant text laid out, let’s compare and contrast Equal Protection with its neighboring amendments. When doing so, one can easily see that its prohibition was not intended to apply only to discrimination based on race, ethnicity, or previous condition of servitude (unlike the 15th), nor to apply to private actions (contrary to the 13th). While the 13th Amendment prohibits slavery from existing in the United States, the Equal Protection Clause only prohibits the State from denying Equal Protection. Likewise, while the 15th Amendment specifically prohibits race and ethnicity as voter-eligibility considerations, the Equal Protection Clause prohibiting the state from “denying…the equal protection of its laws” is much broader.

In fairness, not all provisions are as clear as requiring the President be at least 35 years old (Art. II, § 1, ¶ 5), and the Equal Protection Clause is definitely not that clear. Reasonable people can, therefore, disagree on its scope. However, to say it is so narrow only to prohibit racial and ethnic discrimination goes against the plain text in the context of the whole Constitution. If the drafters just intended for the Clause to prohibit racial and ethnic discrimination, they likely would have just used those terms as they did with the 15th. Likewise, if they had intended for it to apply to private action, they likely would have said, “Denial of equal treatment shall not exist in the United States…” or similar.

Conclusion

Both arguments fallaciously use a purpose to suggest the Equal Protection Clause either goes beyond or stops short of what it plainly says when it is read in the context of all three Civil War Amendments and the full Constitution. The 13th Amendment applies to private action, the 15th Amendment is limited to prohibiting discrimination based on race, ethnicity, and previous servitude status, and the Equal Protection Clause prohibits more than just racial and ethnic discrimination and does not apply to private action.

Other articles
To read similar and differing interpretations on the scope of Equal Protection Clause, click here and here