평등심사에서의 엄격심사의 대상

Abstract

In multi-tiered reviews for determining whether challenged policies violated the Equal Protection Clause, the Court employs strict scrutiny in judging discriminations that are deemed to be inherently suspected. The U.S. Supreme Court has hold that equal protection of the laws would provide to discrete and insular minorities. In this light, part of people in the academy argue that the Equal Protection Clause in the U.S. Constitution should protect certain social groups that have been disadvantaged in the past. But requiring judges to determine which groups have experienced the most historical disadvantage may be in trouble for courts with limited policy expertise. Also it is hard to control other forms of ongoing discrimination and novel forms of inequality. I think that discriminations are suspect when they are based upon inherited traits. These are characteristics which are in some degree out of a person's control and which cannot be altered by their efforts. Therefore, discriminations based upon inherited traits should be rigorously controlled. However, if a certain inherited trait is relate to a substantial difference in the ability to achieve some public interests for the whole of society, it is difficult to see that the discrimination based on it is intrinsically suspect and deserving of court's most strict judicial scrutiny.