Invidious Discrimination

Invidious discrimination refers to the arbitrarily different treatment of a class of persons by the government. Discrimination is said to be invidious if the law’s classification does not rest on a reasonable and just relation to its aims, whatever those aims may be. Discrimination animated solely by bias or prejudice is invidious.

Though the principle of equal protection of law stands as a constitutional commitment to the like treatment by the government of all similarly situated persons, it does not render every legislative classification invalid. Indeed, nearly every law discriminates in some way by differentiating on its face or in its effect between similarly situated persons—between those who will benefit from the law and those who will be burdened by it. As interpreted and applied by the Supreme Court, however, equal protection forbids only invidious discrimination.

For example, the court has treated as presumptively invidious legislative classifications that disfavor individuals who may be identified by their race or national origin or that undermine the ability of individuals to exercise a fundamental right, such as the right to vote. Experience has shown that these classifications often flow from a desire by the majority to disadvantage a discrete group of persons. Accordingly, these classifications can be justified only by a demonstration of a compelling state interest and only if the means to achieve the government’s ends are no broader than necessary.


References and Further Reading

  • Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, NY: Foundation Press, 1988, pp. 1465–1473.

See also Antidiscrimination Laws; Compelling State Interest; Equal Protection of Law (XIV)


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