平等權 保障에 있어서의 違憲法律審査基準 - 美國에 있어서 嚴格審査基準의 최근의 이론적 동향을 중심으로 -

As Alexis de Tocqueville said, “equality is the foundation upon which all other rights are built,” equality’s intimate link to justice and impartiality makes it the premier instrument for the recognition of human rights. Equal protection has taken on different meanings over the centuries. Indeed, the notion of equality is constantly being recast as we become increasingly cognizant that the constituent elements of society do not conform to the mainstream’s values and power structures. To determine whether a legislative classification complies with the right to equal protection under the Fourteenth Amendment, the U.S. Supreme Court has developed a model for examining a legislative purpose and the means of attaining that purpose. In traditional equal protection analysis, the Supreme Court has constructed a two-tiered standard of review comprised of strict scrutiny and rational basis test. Courts have applied the rigid test of strict scrutiny to legislative classifications that concern suspect classes, such as race, alienage or national origin. Courts applying the two-tiered standard of review historically have upheld legislation under the strict scrutiny test only if the legislature has narrowly tailored the classification to serve a compelling governmental interest. A popular myth in American constitutional law is that the “strict scrutiny” standard of review applied to enforce rights such as free speech and equal protection is “‘strict’ in theory and 'fatal' in fact.” This phrase, coined by the legal scholar Gerald Gunther in 1972, has been called “one of the most famous epithets in American constitutional law”. In recent years, however, this traditional understanding of strict scrutiny's inevitable deadliness has been challenged under the theory of contextual strict scrutiny, most notably by Justice Sandra Day O'Connor. As Justice O'Connor has repeatedly tried to remind us, strict scrutiny responds to differences in context and is capable of being overcome. This article finds that, Contrary to the Gunther myth, laws can survive strict scrutiny with considerable frequency.