Clements v. Fashing

Justice Stevens,

concurring in part and concurring in the judgment.

In cases presenting issues under the Equal Protection Clause, the Court often plunges directly into a discussion of the “level of scrutiny” that will be used to review state action that affects different classes of persons differently. Unfortunately that analysis may do more to obfuscate than to clarify the inquiry. This case suggests that a better starting point may be a careful identification of the character of the federal interest in equality that is implicated by the State’s discriminatory classification. In my opinion, the disparate treatment in this case is not inconsistent with any federal interest that is protected by the Equal Protection Clause. With respect to the state action at issue, there is no federal requirement that the different classes be treated as though they were the same.

It is first helpful to put to one side the claim that the burdens imposed on certain Texas officeholders are inconsistent with the First Amendment. I am satisfied that the State’s interest in having its officeholders faithfully perform the public responsibilities they have voluntarily undertaken is adequate to justify the restrictions placed on their ability to run for other offices. Nor is the First Amendment violated by the fact that the restrictions do not apply equally to all offices; while that Amendment requires a State’s treatment of speech to be evenhanded, there is no suggestion here that the State’s classification of offices operates to promote a certain viewpoint at the expense of another. The federal constitutional inquiry thus is limited to the question whether the *974State’s classification offends any interest in equality that is protected by the Equal Protection Clause.

In considering that question, certain preliminary observations are important. The complaining officeholders do not object to the fact that they are treated differently from members of the general public.1 The only complaint is that certain officeholders are treated differently from other officeholders. Moreover, appellees do not claim that the classes are treated differently because of any characteristic of the persons who happen to occupy the various offices at any particular time or of the persons whom those officeholders serve; there is no suggestion that the attributes of the offices have been defined to conceal an intent to discriminate on the basis of personal characteristics or to provide governmental services of differing quality to different segments of the community. In this case, the disparate treatment of different officeholders is entirely a function of the different offices that they occupy.

The question presented then is whether there is any, federal interest in requiring a State to define the benefits and burdens of different elective state offices in any particular-manner. In my opinion there is not. As far as the Equal Protection Clause is concerned, a State may decide to pay a justice of the peace a higher salary than a Supreme Court justice. It may require game wardens to work longer hours than park rangers. It may require meat inspectors to wear uniforms without requiring building inspectors to do so. In addition, I see no reason why a State may not provide that certain offices will be filled on a part-time basis and that others will be filled by persons who may not seek other office until they have fulfilled their duties in the first. There may be no explanation for these classifications that a federal judge *975would find to be “rational.” But they do not violate the Equal Protection Clause because there is no federal requirement that a State fit the emoluments or the burdens of different elective state offices into any particular pattern.2 The reason, then, that appellees may be treated differently from other officeholders is that they occupy different offices. Cf. Illinois State Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 189 (Stevens, J., concurring in part and in judgment).3

As in so many areas of the law, it is important to consider each case individually. In the situation presented, however, I believe that there is no federal interest in equality that requires the State of Texas to treat the different classes as though they were the same.4 This reasoning brings me to the same conclusion that Justice Rehnquist has reached. It avoids, however, the danger of confusing two quite differ*976ent questions.5 Justice Rehnquist has demonstrated that there is a “rational basis” for imposing the burdens at issue on the offices covered by §§ 19 and 65. He has not, however, adéquately explained the reasons, if any, for imposing those burdens on some offices but not others. With respect to the latter inquiry, the plurality is satisfied to note that the State may approach its goals “one step at a time.” Ante, at 969, 970. In my judgment, this response is simply another way of stating that there need be no justification at all for treating two classes differently during the interval between the first step and the second step — an interval that, of course, may well last forever. Although such an approach is unobjectionable in a case involving the differences between different public offices, I surely could not subscribe to Justice Rehn-QUIST’s formulation of the standard to be used in evaluating state legislation that treats different classes of persons differently.6 Accordingly, while I join the Court’s judgment, I join only Parts I, II, and V of Justice Rehnquist’s opinion.

The fact that appellees hold state office is sufficient to justify a restriction on their ability to run for other office that is not imposed on the public generally.

The Federal Constitution does, of course, impose significant constraints on a state government’s employment practices. For example, the First Amendment limits the State’s power to discharge employees who make controversial speeches. Pickering v. Board of Education, 391 U. S. 563. The Due Process Clause affords procedural safeguards to tenured employees. Board of Regents v. Roth, 408 U. S. 564. The Equal Protection Clause prohibits the State from classifying applicants for employment in an arbitrary manner. Sugarman v. Dougall, 413 U. S. 634. I find no comparable federal interest, however, in this case.

In Vance v. Bradley, 440 U. S. 93, the Court held that a statutory classification that treated employees of the Foreign Service differently from employees of the Civil Service did not violate the equal protection component of the Due Process Clause of the Fifth Amendment. In my view, such a classification — without more — could not violate equal protection requirements.

In defining the interests in equality protected by the Equal Protection Clause, one cannot ignore the State’s legitimate interest in structuring its own form of government. The Equal Protection Clause certainly was not intended to require the States to justify every decision concerning the terms and conditions of state employment according to some federal standard.

See Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982). Professor Westen’s article is valuable because it illustrates the distinction between concern with the substantive import of a state restriction and concern with any disparate impact that it may produce. In recognizing that distinction, however, it is important not to lose sight of the fact that the Equal Protection Clause has independent significance in protecting the federal interest in requiring States to govern impartially.

The plurality frames the test that should ordinarily be applied in this way: “Classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the State’s goals and only if no grounds can be conceived to justify them.” Ante, at 963.