Overall, the most common suspect classifications are racial classifications. Traditionally, race and national origin were the only suspect classifications. For some time, however, it appeared that alienation was also considered a suspect classification and therefore classifications based on alienation were subject to the strict standard of review. However, such extensive exemptions have been granted to the application of strict controls in cases involving discriminatory laws on the basis of alienation that they, too, have been essentially relegated to the realm of intermediate control (with gender-discriminatory laws). So far, no classification other than those based on race and national origin has been called “suspect” by the Supreme Court, but it is important to know that the door is open. It is also important to note that while no other type of classification has been classified as “suspect”, the same rigorous standard of scrutiny that applies to these classifications also applies to laws that criminalize fundamental rights, regardless of who is criminalized or whether a suspicious classification is used. The mid-term review means that the government must promote a substantial or important government interest in a way that is narrowly tailored or in a way that does not add much more rhetoric than necessary. Therefore, in general, only laws that use classifications based on race or national origin can lead to abhorrent discrimination, and if the discrimination is intentional, the law is subject to rigorous scrutiny. However, the question arises as to what should be done with laws that attempt to remedy past discrimination by granting advantages to certain minorities in certain areas in order to remedy the effects of past discrimination. This form of “remedial” discrimination is often referred to as “affirmative action”. Should this form of discrimination also be subject to rigorous scrutiny or should it be subject to less scrutiny because it is not “harmful”? In the absence of an intention on the part of the legislature to discriminate on the basis of race or national origin, the classification is not suspect and is therefore not subject to rigorous scrutiny. In some cases, a law will be de facto discriminatory, meaning that it explicitly discriminates on the basis of racial classifications. In such cases, it is not necessary to prove separately that there was an intention of racial discrimination.
More subtly, it can be shown that a de facto neutral law has discriminatory intent based on legislative history, the effect of the law or other facts from which an intention can be inferred. Finally, some de facto neutral laws that have no intent to discriminate against race are applied in a racially discriminatory manner. These also meet the “purpose” requirement and are subject to strict scrutiny. To satisfy the rigorous scrutiny, suspect classifications such as race, alienation, or national origin must be necessary to promote a compelling state interest when there is no less restrictive alternative method of achieving the government`s (state) interest. The Court also scrutinises the classifications affecting certain fundamental rights. Skinner v. Oklahoma is considering an Oklahoma law that requires sterilization of people convicted of three or more crimes involving moral upheaval (“three punches and you`re cut”). In Douglas J.A.`s opinion declaring the law invalid, we see the origins of the overall analysis that the Court applies to rights of a “fundamental nature” such as marriage and procreation. Skinner therefore doubts the continuing validity of Justice Holmes` oft-quoted saying in a 1927 case (Buck v Bell), which considers the forced sterilization of some mentally incapable persons: “Three generations of fools is enough.” One of the biggest controversies surrounding the equality clause today is whether the Court should conclude that sexual orientation is a suspect classification. In its recent opinion on same-sex marriage, Obergefell v. Hodges (2015), the Court suggested that discrimination against gays and lesbians may violate the equality clause. However, the Court did not decide what level of assessment should be applied and left that question to another day.
Suspect classification refers to a category of people who have been discriminated against in the past. The requirement that a classification must be suspect is the main reason why only race and national origin have been classified as suspect.