Elements of Discrimination in a Law



I learned some interesting information in my Constitutional Law class last week regarding the following related topics:

• Does a particular law result in discrimination?

• When should a law be declared Unconstitutional because the law results in improper discrimination?

The practical issues which immediately come to mind are those city ordinances passed in Pennsylvania and Texas which are designed to halt the problems of illegal immigration. These laws are being challenged by illegal immigrants as Unconstitutional and discriminatory.

Elsewhere I have written about how discrimination does not apply, because "criminal" is not a protected class. Now we have additional arguments against the claims of discrimination: these laws do not meet the Elements of a Discriminatory Law.

Elements of Discrimination in a Law

In order for a law to be Unconstitutional because it results in improper discrimination, that law must meet three requirements:

1. The law must single out one group.

2. The group specified must be of a protected class.

3. The law must discriminate for a non-essential reason.

All three elements must be met for a law to be declared unconstitutional due to discrimination.

We will discuss each of these elements.

Element #1: The law must single out one group


For a law to be discriminatory, it must first single out a particular group. This law must specifically mention the group.

If no specific group is mentioned, then the law applies equally to all people, and there is no discrimination.


Example 1: Singling out one group

• "Liquor shall not be sold to Indians."

This law specifically mentions "Indians", therefore it is singling out one group out of the general population.


Example 2: Not singling out one group

• "No liquor can be sold before noon."

This law does not mention any particular group. Therefore, this law applies equally to all people. There is no discrimination.

Element #2: The group specified must be of a protected class.


After we see that a law specifies a specific group (element 1), then we must show that the group is one of the protected classes.

Note that if the group specified in the law is not one of the protected classes, then the law is not showing discrimination.


As a society, we often put people into various categories. This is often done for statistical purposes, such as for medical studies or political polls.

In many cases, we can exclude people from locations and jobs based on these categories. For example, a specific job requires specific experience; without the experience, you can be denied the job.

However, there are some categories which are to be treated differently for the purposes of unconstitutional discrimination. These groups are the "protected classes."

There are three levels of classes: Highly Protected, Moderately Protected, and Not Protected.


Highly Protected Classes

The highly protected classes are: race, national origin, and religion.

The government can almost never make laws which restrict a person based on these categories. Most often, when a law specifies a group by one of these classes, it will be unconstitutional. However, that does not mean such a law can never be done. If there is a valid reason (see element #3), then the law might be acceptable.


Medium Protected Classes

The medium protected classes are: sex, age, and disability.

Sometimes these are protected, sometimes they are not. These really depend on the situation.

For example, you are allowed to separate males from females regarding restrooms, but you cannot separate males from females regarding equal pay.


All Other Groups/Non-Protected Classes

All other ways of grouping people are not protected classes. Just a brief listing of these include: height, weight, income, dress/clothing, experience, and skills.

Note that "criminal" is not a protected class. Similarly, "illegal immigrant" is not a protected class.

If the law mentions any other group which is not a protected class, then the law is acceptable; the law does not impose improper discrimination.

Element #3:

The law must discriminate for a non-essential reason.


For a law to be declared unconstitutional based on discrimination, the law must meet the final criteria: existing for a non-essential reason.


Essential Reasons

The essential reasons (the valid reasons) for such a law are for the health, safety, and general welfare of the community.

Protecting our national security is a legitimate reason. Protecting the health of the community from a contagious disease is a legitimate reason.


Non-Essential Reasons

Any other reason (beyond health and safety) would be non-essential.

FYI, most of the laws which had non-essential reasons (such as separate bathrooms for different races, or male-only public universities) have long since been removed.

Full Example: Japanese Internment


As a full example, I will go through the Japanese Internment during World War II.

Note that in the end, that this was indeed constitutional.

Also, note that my Constitutional Law teacher brought up this example, and declared it constitutional (and he is generally more liberal on issues than he is conservative). Finally, note that I have read Michelle Malkin's book on this subject, so I am familiar with the history.


The Law

The Order for Japanese Internment went something like this:

Japanese citizens and their families who currently reside in the United States must choose one of the following options:

1. Renounce your Japanese citizenship,

2. Move to Japan,

3. Move to the interior of the United States, at least 200 miles from any U.S. military base, or

4. Be relocated by the federal government to interior locations, possibly being detained in former U.S. military barracks, for the duration of the war.


The Elements

1. Did the law single out one group? Yes.

The law specifically mentions Japanese citizens.


2. Is this group a protected class? Yes.

One of the protected classes is National Origin. In fact this is one of the highly protected classes; few laws are acceptable with this type of class.


3. Does this law exist for an essential reason or a non-essential reason?

This is an Essential Reason.

This law was made for national security. National security is indeed an essential reason.


Thus, although the Japanese Internment met 2 of the 3 elements of a discriminatory law, in order to be unconstitutional the law must meet all three elements. Therefore, this law was indeed Constitutional.



The next time someone claims that a law is being discriminatory, and that the law should be declared unconstitutional, remember that this law must satisfy three elements to be voided:

1. The law must single out one group.

2. The group specified must be of a protected class.

3. The law must discriminate for a non-essential reason.

If the law does not meet all three of these elements, then there is no improper discrimination, and the law is fully Constitutional.


Mark Fennell