San Diego International Law Journal

Document Type



This Article will proceed as follows. Part I will describe the methodology and approach of American and German equality law. The constitutional Courts of both countries value equality highly, resulting in strong and well developed jurisprudence. Each of the Courts employ a sliding scale of judicial scrutiny with the degree of scrutiny varying with the trait or personal interest affected by the governmental measure. Strict or extremely intensive scrutiny applies to measures targeting personal traits that especially affect a person's identity, like race, national heritage, or alienage under United States law, and race, sex, gender, language, national origin, disability, faith, religion, or political opinion under German law. More deferential judicial review is reserved for matters involving socio-economic measures with an important difference present under German law. The German Constitutional Court probes even matters of a socio-economic dimension rigorously if the law under review affects different groups of people unequally and there is no persuasive justification for the disparity. We will then turn to an evaluation of the jurisprudence of the German Constitutional Court as measured against that of the United States Supreme Court. Parts II and III will evaluate the Courts' treatment of laws impacting traits of personal dimension; most of these are immutable, people being unable to affect them much, if at all. Under United States law, we call these traits suspect classes, like race, national origin, or alienage. German law comprises a much broader set of such suspect classes: race, sex, gender, language, national origin, disability, faith, religion or political opinion. Part II will focus on several of these suspect traits apart from gender. Gender equality has received the most attention by the Constitutional Court and, thus, will be handled separately in Part III. Under German law, gender based measures are subject to strict scrutiny, as compared to United States law, where gender discrimination is covered under intermediate scrutiny, which also applies to illegitimacy. Part IV will evaluate the Courts'treatment of general socio-economic measures. In German law, inequality resulting in disparate treatment of different groups of people cannot be justified unless pursuant to a convincing rationale; the greater the disparity, the greater degree of judicial scrutiny. This level of review is a form of heightened scrutiny, somewhat less rigorous than strict scrutiny but more probing than standard rational basis. Part V will evaluate the Courts'treatment of general socio-economic measures under a lower level of judicial scrutiny, normally referred to as rational basis in United States law. Under United States law, rational basis review essentially means the measure is presumptively constitutional unless there is no plausible justification present. German law is not quite so deferential. Even standard socio-economic measures are subject to a more probing review if they present overt inequalities. While the nature of this review is not as intensive, the Constitutional Court will evaluate the measure carefully and not presumptively defer to government. Part VI will conclude with comparative observations about the nature and quality of equality jurisprudence in the two countries.