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nd question, the Court considers three factors: ‘‘the extent to which the actor relies on governmental assistance and benefits, whether the actor is performing a traditional governmental function, and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.’’ 1259 There was no question that exercise of peremptory challenges derives from governmental authority (either state or federal, as the case may be); exercise of peremptory challenges is authorized by law, and the number is limited. Similarly, the Court easily concluded that private parties exercise peremptory challenges with the ‘‘overt’’ and ‘‘significant’’ assistance of the court. So too, jury selection is the performance of a traditional governmental function: the jury ‘‘is a quintessential governmental body, having no attributes of a private actor,’’ and it followed, so the Court majority believed, that selection of individuals to serve on that body is also a governmental function whether or not it is delegated to or shared with private individuals. 1260 Finally, the Court concluded that ‘‘the injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself.’’ 1261 Dissenting Justice O’Connor complained that the Court was wiping away centuries of adversary practice in which ‘‘unrestrained private choice’’ has been recognized in exercise of peremptory challenges; ‘‘[i]t is antithetical to the nature of our adversarial process,’’ the Justice contended, ‘‘to say that a private attorney acting on behalf of a private client represents the government for constitutional purposes.’’ 1262 Even though in a criminal case it is the government and the defendant who are adversaries, rather than two private parties, as is ordinarily the case in civil actions, the Court soon applied these same principles to hold that exercise of peremptory challenges by the defense in a criminal case also constitutes state action. 1263 The same generalities apply with at least equal force: there is overt and VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00229 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1900 AMENDMENT 14—RIGHTS GUARANTEED 1264 Polk County v. Dodson, 454 U.S. 512 (1981). 1265 505 U.S. at 54. Justice O’Connor, again dissenting, pointed out that the Court’s distinction was inconsistent with Dodson’s declaration that public defenders are not vested with state authority ‘‘when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.’’ Id. at 65-66. Justice Scalia, also dissenting again, decried reduction of Edmonson ‘‘to the terminally absurd: A criminal defendant, in the process of defending himself against the state, is held to be acting on behalf of the state.’’ Id. at 69-70. Chief Justice Rehnquist, who had dissented in Edmonson, concurred in McCollum in the belief that it was controlled by Edmonson, and Justice Thomas, who had not participated in Edmonson, expressed similar views in a concurrence. 1266 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). 1267 Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Flagg Bros. v. Brooks, 436 U.S. 149, 166 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974). 1268 On funding, see Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964); Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (4th Cir.), cert. denied, 326 U.S. 721 (1945); Christhilf v. Annapolis Emergency Hosp. Ass’n, 496 F.2d 174 (4th Cir. 1974). But cf. Greco v. Orange Mem. Hosp. Corp., 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000 (1975). On tax benfits, see Green v. Connally, 330 F. Supp. 1150 (D.D.C.) (three-judge court), aff’d. sub nom. Coit v. Green, 404 U.S. 997 (1971); McGlotten v. Connally, 338 F. Supp. 448 (D.D.C. 1972); Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir. 1974). But significant governmental assistance in creating and structuring the process, a criminal jury serves an important governmental function and its selection is also important, and the courtroom setting intensifies harmful effects of discriminatory actions. An earlier case 1264 holding that a public defender was not a state actor when engaged in general representation of a criminal defendant was distinguished, the Court emphasizing that ‘‘exercise of a peremptory challenge differs significantly from other actions taken in support of a defendant’s defense,’’ since it involves selection of persons to wield governmental power. 1265 The rules developed by the Court for business regulation are that (1) the ‘‘mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment,’’ 1266 and (2) ‘‘a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State.’’ 1267 Previously, the Court’s decisions with respect to state ‘‘involvement’’ in the private activities of individuals and entities raised the question whether financial assistance and tax benefits provided to private parties would so clothe them with state action that discrimination by them and other conduct would be subjected to constitutional constraints. Many lower courts had held state action to exist in such circumstances. 1268 However the question might have VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00230 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1901 cf. New York City Jaycees v. United States Jaycees, 512 F.2d 856 (2d Cir. 1976); Greenya v. George Washington Univ., 512 F.2d 556 (D.C. Cir.), cert. denied, 423 U.S. 995 (1975). 1269 457 U.S. 830 (1982). 1270 457 U.S. 991 (1982). 1271 457 U.S. at 1011. 1272 489 U.S. 189, 197 (1989). 1273 Estelle v. Gamble, 429 U.S. 97 (1976). 1274 Youngberg v. Romeo, 457 U.S. 307 (1982). been answered under the older cases, it is evident that a negative answer flows from the premises of the more recent cases. In Rendell-Baker v. Kohn, 1269 the private school received ‘‘problem’’ students referred to it by public institutions, it was heavily regulated, and it received between 90 and 99% of its operating budget from public funds. In Blum v. Yaretsky, 1270 the nursing home had practically all of its operating and capital costs subsidized by public funds and more than 90% of its residents had their medical expenses paid from public funds; in setting reimbursement rates, the State included a formula to assure the home a profit. Nevertheless, in both cases the Court found that the entities remained private, and required plaintiffs to show that as to the complained of actions the State was involved, either through coercion or encouragement. ‘‘That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.’’ 1271 In the social welfare area, the Court has drawn a sharp distinction between governmental action subject to substantive due process requirements, and governmental inaction, not so constrained. There being ‘‘no affirmative right to governmental aid,’’ the Court announced in DeShaney v. Winnebago County Social Services Department 1272 that ‘‘as a general matter, . . . a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.’’ Before there can be state involvement creating an affirmative duty to protect an individual, the Court explained, the state must have taken a person into its custody and held him there against his will so as to restrict his freedom to act on his own behalf. Thus, while the Court had recognized due process violations for failure to provide adequate medical care to incarcerated prisoners, 1273 and for failure to ensure reasonable safety for involuntarily committed mental patients, 1274 no such affirmative duty arose from the failure of social services agents to protect an abused child from further abuse from his parent. Even though possible abuse had been reported to the agency and confirmed and monitored by the agency, and the agency VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00231 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1902 AMENDMENT 14—RIGHTS GUARANTEED 1275 489 U.S. at 201. 1276 489 U.S. at 202. 1277 489 U.S. at 203. 1278 For example, rights of association protected by the First Amendment. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179–80 (1972) (Justice Douglas dissenting); Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974); Norwood v. Harrison, 413 U.S. 455, 470 (1973). The right can be implicated as well by affirmative legislative action barring discrimination in private organizations. See Runyon v. McCrary, 427 U.S. 160, 175–79 (1976). 1279 413 U.S. 455 (1973). had done nothing to protect the child, the Court emphasized that the actual injury was inflicted by the parent and ‘‘did not occur while [the child] was in the State’s custody.’’ 1275 While the State may have incurred liability in tort through the negligence of its social workers, ‘‘[not] every tort committed by a state actor [is] a constitutional violation.’’ 1276 ‘‘[I]t is well to remember . . . that the harm was inflicted not by the State of Wisconsin, but by [the child’s] father.’’ 1277 Judicial inquiry into the existence of ‘‘state action’’ may be directed toward the implementation of either of two remedies, and this may well lead to some difference in the search. In the cases considered here suits were against a private actor to compel him to halt his discriminatory action, to enjoin him to admit blacks to a lunch counter, for example. But one could just as readily bring suit against the government to compel it to cease aiding the private actor in his discriminatory conduct. Recurrence to the latter remedy might well avoid constitutional issues that an order directed to the private party would raise. 1278 In any event, it must be determined whether the governmental involvement is sufficient to give rise to a constitutional remedy; in a suit against the private party it must be determined whether he is so involved with the government as to be subject to constitutional restraints, while in a suit against the government agency it must be determined whether the government’s action ‘‘impermissibly fostered’’ the private conduct. Thus, in Norwood v. Harrison, 1279 the Court struck down the provision of free textbooks by the State to private schools set up as racially segregated institutions to avoid desegregated public schools, even though the textbook program predated the establishment of these schools. ‘‘[A]ny tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has ‘a significant tendency to facilitate, reinforce, and support private discrimination.’. . . The constitutional obligation of the State requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00232 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1903 1280 Gilmore v. City of Montgomery, 417 U.S. 556, 568–69 (1974) (quoting Norwood v. Harrison, 413 U.S. 455, 466, 467 (1973)). 1281 Gilmore v. City of Montgomery, 417 U.S. 556, 570 (1974). 1282 417 U.S. at 573-74. In Blum v. Yaretsky, 457 U.S. 991 (1982), plaintiffs, objecting to decisions of the nursing home in discharging or transferring patients, sued public officials, but they objected to the discharges and transfers, not to the changes in Medicaid benefits made by the officials. 1283 Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976). See id. at 46, 63–64 (Justice Brennan concurring and dissenting). other invidious discriminations.’’ 1280 And in a subsequent case, the Court approved a lower court order that barred the city from permitting exclusive temporary use of public recreational facilities by segregated private schools because that interfered with an outstanding order mandating public school desegregation. But it remanded for further factfinding with respect to permitting nonexclusive use of public recreational facilities and general government services by segregated private schools so that the district court could determine whether such uses ‘‘involve government so directly in the actions of those users as to warrant court intervention on constitutional grounds.’’ 1281 Unlike the situation in which private club discrimination is attacked directly, ‘‘the question of the existence of state action centers in the extent of the city’s involvement in discriminatory actions by private agencies using public facilities. . . .’’ Receipt of just any sort of benefit or service at all does not by the mere provision—electricity, water, and police and fire protection, access generally to municipal recreational facilities—constitute a showing of state involvement in discrimination and the lower court’s order was too broad because not predicated upon a proper finding of state action. ‘‘If, however, the city or other governmental entity rations otherwise freely accessible recreational facilities, the case for state action will naturally be stronger than if the facilities are simply available to all comers without condition or reservation.’’ The lower court was directed to sift facts and weigh circumstances on a case-by-case basis in making determinations. 1282 It should be noted, however, that the Court has interposed, without mentioning these cases, a potentially significant barrier to utilization of the principle set out in them. In a 1976 decision, which it has expanded since, it held that plaintiffs, seeking disallowal of governmental tax benefits accorded to institutions that allegedly discriminated against complainants and thus involved the government in their actions, must in order to bring the suit show that revocation of the benefit would cause the institutions to cease the complained-of conduct. 1283 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00233 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1904 AMENDMENT 14—RIGHTS GUARANTEED 1284 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873). Cf. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 177 (1972) (Justice Rehnquist dissenting). 1285 Chicago, B. & Q. R.R. v. Iowa, 94 U.S. 155 (1877); Peik v. Chicago & Nw. Ry., 94 U.S. 164 (1877); Chicago, M. & St. P. R.R. v. Ackley, 94 U.S. 179 (1877); Winona & St. Peter R.R. v. Blake, 94 U.S. 180 (1877). 1286 Santa Clara County v. Southern Pac. R.R., 118 U.S. 394, 396 (1886). The background and developments from this utterance are treated in H. GRAHAM, EVERYMAN’S CONSTITUTION—HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE ?CONSPIRACY THEORY?, AND AMERICAN CONSTITUTIONALISM chs. 9, 10, and pp. 566–84 (1968). Justice Black, in Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 85 (1938), and Justice Douglas, in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576 (1949), have disagreed that corporations are persons for equal protection purposes. 1287 Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). For modern examples, see Levy v. Louisiana, 391 U.S. 68, 70 (1968); Graham v. Richardson, 403 U.S. 365, 371 (1971). 1288 City of Newark v. New Jersey, 262 U.S. 192 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36 (1933). 1289 See Plyler v. Doe, 457 U.S. 202, 210–16 (1982) (explicating meaning of the phrase in the context of holding that aliens illegally present in a State are ‘‘within its jurisdiction’’ and may thus raise equal protection claims). ‘‘Person’’.—In the case in which it was first called upon to interpret this clause, the Court doubted whether ‘‘any action of a State not directed by way of discrimination against the [N]egroes as a class, or on account of their race, will ever be held to come within the purview of this provision.’’ 1284 Nonetheless, in deciding the Granger Cases shortly thereafter, the Justices seemingly entertained no doubt that the railroad corporations were entitled to invoke the protection of the clause. 1285 Nine years later, Chief Justice Waite announced from the bench that the Court would not hear argument on the question whether the equal protection clause applied to corporations. ‘‘We are all of the opinion that it does.’’ 1286 The word has been given the broadest possible meaning. ‘‘These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. . .’’ 1287 The only qualification is that a municipal corporation cannot invoke the clause against its State. 1288 ‘‘Within Its Jurisdiction’’.—Persons ‘‘within its jurisdiction’’ are entitled to equal protection from a State. Largely because Article IV, § 2, has from the beginning guaranteed the privileges and immunities of citizens in the several States, the Court has rarely construed the phrase in relation to natural persons. 1289 It was first held that a foreign corporation not doing business in a State under conditions that subjected it to process issuing from the courts of that State was not ‘‘within the jurisdiction’’ and could not complain of the preferences granted resident creditors in the distribution of VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00234 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1905 1290 Blake v. McClung, 172 U.S. 239, 261 (1898); Sully v. American Nat’l Bank, 178 U.S. 289 (1900). 1291 Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544 (1923). 1292 Hillsborough v. Cromwell, 326 U.S. 620 (1946). 1293 Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949); Hanover Ins. Co. v. Harding, 272 U.S. 494 (1926). See also Philadelphia Fire Ass’n v. New York, 119 U.S. 110 (1886). 1294 The story is recounted in J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956). See also JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION (B. Kendrick, ed. 1914). The floor debates are collected in 1 STATUTORY HISTORY OF THE UNITED STATES—CIVIL RIGHTS 181 (B. Schwartz, ed. 1970). 1295 Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now in part 42 U.S.C. §§ 1981, 1982. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422–37 (1968). 1296 As in fact much of the legislation which survived challenge in the courts was repealed in 1894 and 1909. 28 Stat. 36; 35 Stat. 1088. See R. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 45–46 (1947). 1297TENBROEK, EQUAL UNDER LAW (rev. ed. 1965); Frank & Munro, The Original Understanding of ‘Equal Protection of the Laws’, 50 COLUM. L. REV. 131 (1950); Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955); and see the essays collected in H. GRAHAM, EVERYMAN’S CONSTITUTION— HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE ?CONSPIRACY THEORY?, AND AMERICAN CONSTITUTIONALISM (1968). In calling for reargument in Brown v. Board of Education, 345 U.S. 972 (1952), the Court asked for and received assets of an insolvent corporation, 1290 but this holding was subsequently qualified, the Court holding that a foreign corporation which sued in a court of a State in which it was not licensed to do business to recover possession of property wrongfully taken from it in another State was ‘‘within the jurisdiction’’ and could not be subjected to unequal burdens in the maintenance of the suit. 1291 The test of amenability to service of process within the State was ignored in a later case dealing with discriminatory assessment of property belonging to a nonresident individual. 1292 When a State has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws but not necessarily to identical treatment with domestic corporations. 1293 Equal Protection: Judging Classifications by Law A guarantee of equal protection of the laws was contained in every draft leading up to the final version of section 1 of the Fourteenth Amendment. 1294 Important to its sponsors was the desire to provide a firm constitutional basis for already-enacted civil rights legislation, 1295 and, by amending the Constitution, to place repeal beyond the accomplishment of a simple majority in a future Congress. 1296 No doubt there were conflicting interpretations of the phrase ‘‘equal protection’’ among sponsors and supporters and the legislative history does little to clarify whether any sort of consensus was accomplished and if so what it was. 1297 While the Court VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00235 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1906 AMENDMENT 14—RIGHTS GUARANTEED extensive analysis of the legislative history of the Amendment with no conclusive results. Brown v. Board of Education, 347 U.S. 483, 489–90 (1954). 1298 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873). 1299 In Buck v. Bell, 274 U.S. 200, 208 (1927), Justice Holmes characterized the equal protection clause as ‘‘the last resort of constitutional arguments.’’ 1300 See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discrimination against Chinese on the West Coast). 1301 Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide prohibition does not violate Equal Protection Clause by distinguishing between terminally ill patients on life-support systems who are allowed to direct the removal of such systems and patients who are not on life support systems and are not allowed to hasten death by self-administering prescribed drugs). 1302 Tigner v. Texas, 310 U.S. 141, 147 (1980). 1303 Atchison, T. & S.F.R.R. v. Matthews, 174 U.S. 96, 106 (1899). See also from the same period, Orient Ins. Co. v. Daggs, 172 U.S. 557 (1869); Bachtel v. Wilson, 204 U.S. 36 (1907); Watson v. Maryland, 218 U.S. 173 (1910), and later cases. Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552 (1947); Goesaert v. Cleary, 335 U.S. 464 (1948); McGowan v. Maryland, 366 U.S. 420 (1961); Schilb v. Kuebel, 404 U.S. 357 (1971); Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980); Schweiker v. Wilson, 450 U.S. 221 (1981). 1304 Barrett v. Indiana, 229 U.S. 26 (1913). early recognized that African Americans were the primary intended beneficiaries of the protections thus adopted, 1298 the spare language was majestically unconfined to so limited a class or to so limited a purpose. Thus, as will be seen, the equal protection standard came to be applicable to all classifications by legislative and other official bodies, though not with much initial success, 1299 until now the equal protection clause in the fields of civil rights and fundamental liberties looms large as a constitutional text affording the federal and state courts extensive powers of review with regard to differential treatment of persons and classes. The Traditional Standard: Restrained Review.—The traditional standard of review of equal protection challenges of classifications developed largely though not entirely in the context of economic regulation. 1300 It is still most validly applied there, although it appears in many other contexts as well. 1301 A more active review has been developed for classifications based on a ‘‘suspect’’ indicium or affecting a ‘‘fundamental’’ interest. ‘‘The Fourteenth Amendment enjoins ‘the equal protection of the laws,’ and laws are not abstract propositions.’’ Justice Frankfurter once wrote. ‘‘They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.’’ 1302 The mere fact of classification will not void legislation, 1303 then, because in the exercise of its powers a legislature has considerable discretion in recognizing the differences between and among persons and situations. 1304 ‘‘Class legislation, discrimi- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00236 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1907 1305 Barbier v. Connolly, 113 U.S. 27, 32 (1885). 1306 Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955). 1307 220 U.S. 61, 78–79 (1911), quoted in full in Morey v. Doud, 354 U.S. 457, 463–64 (1957). Classifications which are purposefully discriminatory fall before the equal protection clause without more. E.g., Barbier v. Connolly, 113 U.S. 27, 30 (1885); Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886). Cf. New York City Transit Auth. v. Beazer, 440 U.S. 568, 593 n.40 (1979). Explicit in all the formulations is that a legislature must have had a permissible purpose, a requirement which is seldom failed, given the leniency of judicial review. But see Zobel v. Williams, 457 U.S. 55, 63–64 (1982), and id. at 65 (Justice Brennan concurring). nating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.’’ 1305 Or, more succinctly, ‘‘statutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution.’’ 1306 How then is the line between permissible and i

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