Return to: Index of "1994 International Covenant on Civil and Political Rights"
Index of "Treaties and Legal Issues" || Electronic Research Collections Index || ERC Homepage

JULY 1994

Article 2 - Equal Protection of Rights in the 

As a general principle, all individuals within the 
United States are afforded the enjoyment of the 
rights enumerated in the Covenant on Civil and 
Political Rights as a matter of law without regard 
to race, color, sex, language, religion, political 
or other opinion, national or social origin, 
property, birth or other status.  Judicial 
interpretation of the guarantees in the U.S. 
Constitution has led to the development of an 
extensive body of decisional law covering a broad 
spectrum of governmental activity according to a 
number of well- accepted canons.  The right of 
individuals to challenge governmental actions in 
court, and the power of the judiciary to invalidate 
those actions that fail to meet the constitutional 
standards, provides an effective method for ensuring 
equal protection of the law in practice.  In 
addition, a number of significant anti-
discrimination statutes provide additional 
protection for the civil and political rights of 
persons within the United States.  While the 
remainder of this section of the report addresses 
domestic law regarding the principle of equal 
protection, the United States is nonetheless 
committed to the international principle of equal 
protection and is actively moving toward 
ratification of the Convention on the Elimination of  
All Forms of Racial Discrimination and the 
Convention on the Elimination of All Forms of 
Discrimination Against Women.

Equal Protection.  Most of the substantive rights 
enumerated in the Covenant have exact or nearly-
exact analogues in the U.S. Constitution, as is 
discussed more fully in those portions of this 
report dealing with each of the 26 articles.  In 
addition, and of particular relevance to Article 2, 
the Constitution guarantees  equal protection  to 
all.  This principle derives from the Fourteenth 
Amendment's guarantee that no state may "deny to any 
person within its jurisdiction the equal protection 
of the laws," and the Fifth Amendment's guarantee 
that "no person shall be deprived of life, liberty, 
or property, without due process of law," which has 
been read to incorporate an "equal protection" 
component.  Bolling v. Sharpe, 347 U.S. 497 (1954).  
These constitutional provisions limit the power of 
government with respect to all persons subject to 
U.S. jurisdiction.  As interpreted and applied by 
the U.S. Supreme Court, the doctrine of equal 
protection applies not only with respect to the 
rights protected by the Covenant, but also to the 
provision of government services and benefits such 
as education, employment and housing.

The substantive guarantees of the Constitution are 
often implemented without reference to equal 
protection.  For example, the Supreme Court recently 
held that a local government could not 
constitutionally prohibit animal sacrifices that are 
part of a religious ritual, although the government 
could pass neutral laws to protect animals from 
torture, or to protect public health.  Church of the 
Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 
S.Ct. 2217 (1993).  While the group that practices 
the sacrifices may be identifiable racially and 
ethnically, the case was decided squarely under the 
First Amendment protection of religious freedom.  
The Court did not discuss the issues in terms of 
ethnic nondiscrimination and equal protection.  

Classifications.  Under the doctrine of equal 
protection, it has long been recognized that the 
government must treat persons who are  similarly 
situated  on an equal basis, but can treat persons 
in different situations or classes in different ways 
with respect to a permissible state purpose.  The 
general rule is that legislative classifications are 
presumed valid if they bear some reasonable relation 
to a legitimate governmental purpose.  McGowan v. 
Maryland, 366 U.S. 420, 425-36 (1961).  The most 
obvious example is economic regulation.  Both state 
and federal governments are able to apply different 
rules to different types of economic activities, and 
the courts will review such regulation under a very 
deferential standard.  See, e.g., Williamson v. Lee 
Optical Co., 348 U.S. 483 (1955).  Similarly, the 
way in which a state government chooses to allocate 
its financial resources among categories of needy 
people will be reviewed under a very deferential 
standard.  Dandridge v. Williams, 397 U.S. 471 

Suspect Classifications.  On the other hand, certain 
distinctions or classifications have been recognized 
as inherently invidious and therefore have been 
subjected to more exacting scrutiny and judged 
against more stringent requirements.  For example, 
classification on the basis of racial distinctions 
is automatically  suspect  and must be justified as 
necessary to a compelling governmental purpose.  
Korematsu v. United States, 323 U.S. 214 (1944); 
Brown v. Board of Education, 347 U.S. 483 (1954); 
McLaughlin v. Florida, 379 U.S. 184 (1961); Loving 
v. Virginia, 388 U.S. 1 (1967).  Laws which 
purposely discriminate against racial minorities, 
whether in the fields of housing, voting, 
employment, education or other areas, have rarely 
been upheld under this higher standard.  When 
intentional discrimination on the basis of race or 
national origin can be inferred from a legislative 
scheme or discerned in legislative history, it is as 
forbidden as overt use of a racial classification.  
Village of Arlington Heights v. Metropolitan Housing 
Dev. Corp., 429 U.S. 252 (1977); Takahashi v. Fish 
and Game Comm n, 334 U.S. 410 (1948).  Unlawful 
intentional discrimination has sometimes been 
inferred simply from the impact of a law.  For 
example, in Yick Wo v. Hopkins, 118 U.S. 356 (1886), 
the Supreme Court found impermissible discrimination 
where all of some 200 Chinese applicants were denied 
permits to operate laundries while virtually all 
non-Chinese applicants were granted permits under 
the same statute.

In addition to distinctions based on race, color and 
national origin, distinctions based on gender, 
illegitimacy and alienage have all been accorded 
special status under the Equal Protection clauses, 
though legislative classifications of the last three 
types are typically less difficult to justify than 
classifications by race, color, or national origin.  
For example, in Craig v. Boren, 429 U.S. 190 (1976), 
the Court stated that classifications by gender must  
substantially further important government 
objectives,  and struck down a state statute setting 
a higher drinking age for men than women.  In Levy 
v. Louisiana, 391 U.S. 68 (1968), the Court held 
that a state statute that did not permit 
illegitimate children to sue for wrongful death was  
invidiously  discriminatory because there was no 
link between the children s illegitimacy and the 
alleged wrong to their mother.  And in Graham v. 
Richardson, 403 U.S. 365 (1971), the Court struck 
down state statutes denying welfare benefits to 
resident aliens and to aliens who had not resided in 
the state for 15 years.

By contrast, the courts have not read the 
Constitution s Equal Protection clauses to require 
compelling justifications for classifications based 
on property or economic status, San Antonio School 
District v. Rodriguez, 411 U.S. 1 (1973); age, 
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 
307 (1976); or disability, Cleburne v. Cleburne 
Living Center, Inc., 473 U.S. 432 (1985).  Thus, 
distinctions based on such characteristics will be 
assessed against less stringent standards but may 
still be found to violate the equal protection 
doctrine when not rationally related to a legitimate 
governmental purpose.  Disability and age 
discrimination have also been addressed by statute, 
as discussed below.

Fundamental Interest.  Where a so-called 
"fundamental interest" is at stake, the Supreme 
Court has subjected legislative classifications to 
"strict scrutiny" despite the absence of a suspect 
classification.  This explains why, in the cases 
involving the right to vote (including fair 
apportionment) and the due process cases (right to 
counsel, etc.), the Court has found invidious 
discrimination even though the basis for that 
discrimination is not race, national origin, sex, or 
any other suspect class.  What makes a right 
"fundamental" is not always clear.  The fundamental 
rights are not necessarily those found in other 
provisions of the Constitution; indeed, those other 
rights can be protected without reference to equal 
protection.  More likely, the rights are the ones 
not found in the Constitution except by inference, 
such as the right to procreation.  See Skinner v. 
Oklahoma, 316 U.S. 535 (1942) (sterilization of 
persons convicted of grand larceny but not 

Corrective or Affirmative Action.  In recent years, 
the question has frequently arisen whether 
legislation may classify by race for purposes of 
compensating for past racial discrimination.  The 
general rule that has evolved is that because race 
is a  suspect classification,  in this context as in 
all others, it will be subject to  strict scrutiny  
by the courts.  City of Richmond v. Croson, 488 U.S. 
469 (1989).  However, where an employer or other 
entity has engaged in racial discrimination in the 
past, it will generally be permitted (and may 
sometimes be required) to accord narrowly-tailored 
racial preferences for a limited period of time, to 
correct the effects of its past conduct.  See Wygant 
v. Jackson Bd. of Educ., 476 U.S. 267 (1986).  
Greater latitude for racially-based remedies has 
been permitted when Congress has acted under the 
enabling clause of the Fourteenth Amendment than 
when states or political subdivisions have given a 
racial preference.  See, e.g., Fullilove v. 
Klutznick, 448 U.S. 448 (1980) (upholding 
congressionally mandated set-aside of percentage of 
federal grant to be spent through minority 

Specific Issues.  Although, as noted above, issues 
of discrimination involving rights protected by the 
Covenant are often addressed through suits to 
vindicate a constitutional right other than equal 
protection, equal protection has sometimes been 
invoked directly in connection with certain 
guarantees specified in the Covenant.

Poverty and due process.  The Fifth and Fourteenth 
Amendments assure  due process of law  as well as  
equal protection of the law.   Obviously, economic 
status can affect the right to a fair trial and a 
reasonably effective appeal.  In this area, courts 
have weighed the essentiality of certain elements of 
the justice system and, on occasion, found it a 
denial of equal protection for the state to fail to 
pay for the necessary assistance -- e.g., to provide 
counsel, Douglas v. California, 372 U.S. 353 (1963); 
Gideon v. Wainwright, 372 U.S. 335 (1963); and 
transcripts Griffin v. Illinois, 351 U.S. 12 (1956).  
Similarly, the Supreme Court has held that a person 
s probation cannot be revoked merely because he is 
unable to pay restitution,  Bearden v. Georgia, 461 
U.S. 660 (1983).  All states and the federal 
government have mechanisms for providing legal 
counsel to indigent defendants in the criminal 

Race and due process.  Even in the nineteenth 
century it was clear that racial discrimination in 
jury selection affected the due process rights of 
African Americans, Strauder v. West Virginia, 100 
U.S. 303 (1879).  Reading the Equal Protection 
clauses in conjunction with the constitutional 
guarantee of Due Process, the Supreme Court has 
repeatedly held that it is a violation to 
discriminate in preparation of jury lists on the 
basis of race or national origin, Neal v. Delaware, 
103 U.S. 370 (1880); Hernandez v. Texas, 347 U.S. 
475 (1954).  That prohibition has been extended to 
the exercise of peremptory challenges in petit jury 
selection, Batson v. Kentucky, 476 U.S. 79 (1986), 
and, most recently, to peremptory challenges on the 
basis of sex, J.E.B. v. Alabama Ex Rel. T.B., 62 
U.S.L.W. 4219 (April 19, 1994).  While that 
prohibition has not been extended to encompass other 
statuses (e.g., low-income), a separate line of 
cases has interpreted the Sixth Amendment right to a 
fair trial and a jury of one s peers to encompass a 
right to be tried by a jury drawn from a venire from 
which no  identifiable group  has been 
systematically excluded.  Williams v. Florida, 399 
U.S. 78 (1970); Duncan v. Louisiana, 391 U.S. 145 
(1968).  Moreover, the Court has recognized that the 
potential jurors also have a cognizable right not to 
be discriminated against.  Carter v. Jury Comm n of 
Greene County, 39 U.S. 320 (1970); Georgia v. 
McCollum, 112 S. Ct. 2348 (1992).

Race and the death penalty.  Legal attacks on the 
death penalty have generally been based on the 
Eighth Amendment s prohibition of cruel and unusual 
punishment.  In recent years, however, there have 
been efforts to demonstrate that in operation, the 
death penalty is unequally applied on the basis of 
race.  Numerous defendants have attempted, so far 
without success,  to show that the discretionary 
elements in the process of sentencing a defendant to 
death have had the effect of discrimination by race 
of defendant or race of victim.  See McCleskey v. 
Kemp, 481 U.S. 279 (1987) (where petitioner could 
not demonstrate that he personally had been 
discriminated against, statistics suggesting 
systemic inequities could not be used to overturn 
death sentence).  This issue is also the subject of 
considerable public debate and political 
consideration and is currently under study in the 
U.S. Congress.

Race and the right to form families.  The Supreme 
Court has relied upon the Equal Protection Clause to 
invalidate state bans on intermarriage, Loving v. 
Virginia, 388 U.S. 1 (1967), and to prevent courts 
dealing in child custody from implementing societal 
prejudices, Palmore v. Sidoti, 466 U.S. 429 (1984).

State Action.  Operating alone, the constitutional 
equal protection clauses protect one only against 
discriminatory treatment by a government entity, or 
by persons acting  under color of law.   Thus, the 
doctrine does not reach purely private conduct in 
which there is no governmental involvement.  Whether 
or not in any particular situation there is 
sufficient  state action  to bring a discriminatory 
practice under the constitutional Equal Protection 
clauses represents a complicated jurisprudence in 
its own right.  See, e.g., Moose Lodge No. 107 v. 
Irvis, 407 U.S. 163 (1972).

Federal Statutes.  Congress has supplemented the 
constitutional guarantees of equal protection to 
encompass certain private actions by exercising its 
powers under the  commerce clause  and under the  
enabling  clauses of the Thirteenth, Fourteenth, and 
Fifteenth Amendments.  After the Civil War, Congress 
implemented the Thirteenth Amendment by passing laws 
prohibiting private racial discrimination in 
property and contractual relationships.  42 U.S.C. 
   1981 and 1982.  Most of the federal civil rights 
laws were passed in and after 1964 on the basis of 
the commerce clause as well as the post-Civil War 
amendments.  These statutes prohibit discrimination 
in areas beyond those covered by the Covenant, 
including privately-owned public accommodations, 
private and federal, state or local governmental 
employment, federally-assisted programs, and private 
and public housing.  Where the statutes cover ground 
already protected by the Constitution, they add 
remedies that did not exist before.  Moreover, these 
statutes prohibit discrimination on the basis of 
statuses other than, and in addition to, the ones 
protected under the Equal Protection Clauses of the 
Constitution.  Thus, in addition to race, color, 
national origin, and sex (in most instances), these 
statutes include religion (but not in federally 
assisted programs), age, familial status (housing 
only) and disability.

Virtually every federal agency is involved in 
promoting or enforcing equal protection guarantees.  
Although the federal civil rights statutes and 
implementing regulations are too numerous to provide 
an exhaustive list, some of the principal statutes 
are described below.  Because these statutes were 
passed at different times to address different 
problems, no two cover precisely the same ground.  
For example, Title II of the Civil Rights Act of 
1964, prohibiting discrimination in places of public 
accommodation and amusement (hotels, restaurants, 
cinemas) does not mention  sex  as a protected 
category.  Title II, moreover, does not protect 
against discrimination by race in ordinary retail 
stores.  On the other hand, the Americans with 
Disabilities Act, passed in 1990, requires that 
retail stores as well as places of public amusement 
be accessible to persons with disabilities.  Some of 
the gaps in coverage are filled in by state and 
local constitutions, laws, and ordinances.

Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
   2000d et seq., prohibits discrimination on the 
basis of race, color, or national origin in programs 
or activities receiving federal financial 
assistance.  Title IX of the Education Amendments of 
1972, 20 U.S.C.    1681 et seq., and implementing 
regulations at 34 C.F.R. Part 106, prohibits 
discrimination on the basis of sex in federally 
funded education programs or activities.  Section 
504 of the Rehabilitation Act of 1973, 29 U.S.C.   
794, prohibits discrimination on the basis of 
disability in programs or activities receiving 
federal financial assistance.  The Age 
Discrimination Act of 1975, 42 U.S.C.    6101-7, 
prohibits discrimination on the basis of age in 
programs or activities receiving federal financial 

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
   2000e et seq., prohibits public and private 
employers (with certain exceptions including the 
federal government and small private businesses) 
from discriminating on the basis of race, color, 
religion, sex or national origin in their employment 
practices.  The Age Discrimination in Employment Act 
of 1967, 29 U.S.C.    621 et seq., similarly bars 
discrimination in employment on the basis of age.  

Section 503 of the Rehabilitation Act of 1973, 29 
U.S.C.   793, requires employers with federal 
contracts or subcontracts of more than $10,000 to 
take affirmative action to employ and advance in 
employment qualified individuals with disabilities.  
Executive Order 11246, as amended, prohibits most 
federal contractors and subcontractors and federally 
assisted contractors and subcontractors from 
discriminating in employment decisions on the basis 
of race, color, sex, religion or national origin.  
The Vietnam-Era Veterans' Readjustment Assistance 
Act of 1974, 38 U.S.C.   4212, requires that 
employers with federal contracts or subcontracts of 
$10,000 or more provide equal opportunity and 
affirmative action for Vietnam-era veterans and 
certain disabled veterans of all wars.  The 
Americans with Disabilities Act of 1990 (ADA), 42 
U.S.C.    12101 et seq., bars discrimination in 
employment practices by employers (with exceptions 
similar to those under Title VII, supra) against 
qualified individuals with disabilities.  The ADA 
also requires that steps be taken to make "public 
entities" such as public transit, and "public 
accommodations," which includes many private 
commercial establishments, accessible to disabled 

The Fair Housing Act, 42 U.S.C.   3601 et seq., and 
implementing regulations at 24 C.F.R. Parts 100-125, 
prohibits discrimination based on race, color, 
religion, sex, national origin, handicap and 
familial status in activities relating to the sale, 
rental, financing and advertising of housing and in 
the provision of services and facilities in 
connection with housing.  The Act applies both to 
public and private housing and defines "familial 
status" to include one or more persons under the age 
of 18 being domiciled with a parent or other person 
having legal custody of such individual or 

Additionally, many federal agencies administer 
programs designed to enhance opportunities for 
women, minorities, and other groups.  For example, 
the U.S. Department of Education administers grant 
programs designed to encourage and assist the 
participation of minorities and women in elementary, 
secondary and higher education programs.  These 
include bilingual education programs, magnet 
schools, desegregation assistance centers, women s 
educational equity programs, financial aid for 
students who are minorities or women, and grants to 
strengthen historically African-American colleges 
and universities.  The U.S. Department of Labor 
monitors and enforces compliance with the 
nondiscrimination provisions applicable to federal 
contractors and apprenticeship programs, including 
affirmative action programs for women and 
minorities, and promotes the placement of Native 
Americans with federal contractors.

Aliens.  Under U.S. immigration law, an alien is 
"any person not a citizen or national of the United 
States."  See 8 U.S.C.   1101(a)(3).  Aliens living 
in the United States, even though not U.S. citizens, 
generally enjoy the constitutional and Covenant 
rights and protections of citizens, including the 
right to life; freedom from torture, or cruel, 
inhuman or degrading treatment or punishment; 
prohibition of slavery; the right to liberty and 
security of person; the right to humane treatment 
for persons deprived of their liberty; freedom from 
imprisonment for breach of contractual obligation; 
freedom of movement; the right to fair trial; 
prohibition of ex post facto laws; recognition as a 
person under the law; freedom from arbitrary 
interference with privacy, family and home in the 
United States; freedom of thought, conscience and 
religion; freedom of opinion and expression; freedom 
of assembly; and freedom of association.  "Aliens, 
even aliens whose presence in this country is 
unlawful, have long been recognized as 'persons' 
guaranteed due process of law by the Fifth and 
Fourteenth Amendments,"  Plyer v. Doe, 457 U.S. 202, 
210 (1982); see also Kwong Hai Chew v. Colding, 344 
U.S. 590, 596 (1953) (resident aliens are persons 
within the protection of the Fifth Amendment and may 
not be deprived of life, liberty or property without 
due process); Wong Wing v. United States, 163 U.S. 
228, 238 (1896) (aliens accused of a crime are 
entitled to Fifth and Sixth Amendment rights). 

Aliens enjoy equal protection rights as well, but 
distinctions between illegal aliens and others do 
not require as strong justifications as distinctions 
between citizens and aliens lawfully in the United 
States.  Distinctions between resident aliens and 
citizens require more justification, but not the 
compelling state interests required for distinctions 
based on race.  The longer an alien has been in the 
United States and the more legitimate the alien's 
immigration status, the more equivalent the alien's 
equal protection rights are to those of a U.S. 
citizen.  Consistent with Article 25 of the 
Covenant, aliens are generally precluded from voting 
or holding federal elective office.  A number of 
federal statutes, some of which are discussed above, 
prohibit national origin discrimination in various 

State Constitutions.  Roughly 27 states currently 
have "equal protection clauses" in their 
constitutions.  Unlike the Fourteenth Amendment to 
the United States Constitution, the state equal 
protection guarantees often incorporate other rights 
by reference.  For example, the Connecticut clause 
(Constitution, Art. I, section 20) provides: "No 
person shall be denied the equal protection of the 
law nor be subjected to segregation or 
discrimination in the exercise or enjoyment of his 
or her civil or political rights because of 
religion, race, color, ancestry, national origin, or 
sex."  Whether the "civil or political rights" are 
restricted, under this kind of clause, to rights 
enumerated elsewhere in the state constitution, 
depends upon the state judiciary's interpretation.  
As a practical matter, the Fourteenth Amendment 
provides a minimum below which no state can go in 
according equal protection.  The states can extend 
but not contract what the federal Constitution 

Remedies.  U.S. law provides extensive remedies and 
avenues for seeking compensation and redress for 
alleged discrimination and denial of constitutional 
and related statutory rights, including:  

1.  A person claiming to have been denied a 
constitutional or, in some instances, a statutory 
right, may bring a civil action in federal court 
under 42 U.S.C.   1983, which states:

     Every person who, under color of any statute, 
ordinance, regulation, custom, or usage of any State 
or Territory or the District of Columbia subjects, 
or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction 
thereof to the deprivation of any rights, 
privileges, or immunities secured by the 
Constitution and laws, shall be liable to the party 
injured in an action at law, suit in equity, or 
other proper proceeding for redress...

Only "state actions" or actions "under color of 
state law" are subject to Section 1983.  These 
include actions by federal, state and local 
officials.  Some officials, however, are subject to 
absolute or qualified immunity. Judges, for example, 
enjoy absolute immunity.  Bradley v. Fisher, 80 U.S. 
335 (1872).  Other officials enjoy qualified 
immunity, which is designed to protect the 
discretion of officials in the exercise of their 
official functions.  Qualified immunity will not be 
afforded, however, if the officials violated clearly 
established statutory or constitutional rights of 
which a reasonable person would have known.  Harlow 
v. Fitzgerald, 457 U.S. 800 (1982).  While 
prosecutors enjoy absolute immunity from suit for 
their involvement in the judicial phase of the 
criminal process, they are afforded only qualified 
immunity for law enforcement functions.  Burns v. 
Reed, 500 U.S. 478 (1991).

The Fourteenth Amendment's Due Process and Equal 
Protection clauses, as well as other constitutional 
rights, are enforced under Section 1983 in hundreds 
of federal suits every year.  The most common relief 
under Section 1983 is damages, subject only to rules 
about official immunity.  Injunctive relief is also 
available and widely used as relief under this 

All states have judicial procedures by which 
official action may be challenged, though the 
procedure may go by various names (such as "petition 
for review").  

2.  Federal officials may be sued directly under 
provisions of the Constitution, subject only to 
doctrines of immunity.  See Bivens v. Six Unknown 
Named Agents, 403 U.S. 388 (1971); Davis v. Passman, 
442 U.S. 228 (1979).

3.  Conspiracies to deny civil rights, apart from 
being subject to criminal prosecution, may be 
attacked civilly under 42 U.S.C.   1985.  However, 
where the right is one enumerated in the 
Constitution as being secured only from "state 
action," there must be official actors in the 
conspiracy, or it cannot be reached under that 
statute.  Brotherhood of Carpenters and Joiners of 
America, Local 610, AFL-CIO v. Scott, 463 U.S. 825 

4.  Section 2 of the Voting Rights Act of 1965, as 
amended, may be enforced by a private suit to 
vindicate denials of Fifteenth Amendment rights, 
i.e., intentional denials or limitations on the 
right to vote or to exercise an effective vote.  
(See the discussion under Article 25).

5.  Where Congress has so provided, the federal 
government, through the Attorney General, may bring 
civil actions to enjoin acts or patterns of conduct 
that violate some constitutional rights.  Thus, as 
indicated below, the Attorney General can sue under 
the Civil Rights of Institutionalized Persons Act to 
vindicate the rights of persons involuntarily 
committed to prisons, jails, hospitals, and 
institutions for the mentally retarded.  Similarly, 
Section 2 of the Voting Rights Act of 1965, as 
amended, authorizes the Attorney General to bring 
suit to vindicate the right to vote without 
discrimination based on race.            

6.  A person whose alleged injury resembles one actionable 
at common law (such as the deprivation of life 
addressed by Article 6) may sue the United States 
for damages under the Federal Tort Claims Act 
(FTCA), 28 U.S.C.   1346(b), 2671 et seq., or sue 
the states under analogous state statutes.  The FTCA 
waives the sovereign immunity of the United States 
with respect to certain torts.   Discretionary  
acts, and many  intentional  torts are not included, 
but the Act does waive the sovereign immunity of the 
United States with respect to claims arising out of 
assault, battery, false imprisonment, false arrest, 
abuse of process, or malicious prosecution based on 
the acts or omissions of "investigative or law 
enforcement officers" of the U.S. Government.  The 
Act defines "investigative or law enforcement 
officer" as an officer of the United States who is 
empowered by law to execute searches, to seize 
evidence, or to make arrests for violations of 
federal law; this definition may include Department 
of Defense personnel being used in a law enforcement 

7.  Any person prosecuted under a statute or in 
conjunction with a governmental scheme (such as jury 
selection) which he or she believes to be 
unconstitutional may challenge that statute as part 
of the defense.  This may be done in the context of 
federal or state prosecutions.  Even in civil 
actions, the defendant may pose a constitutional 
challenge to the statute that forms the basis of the 
suit.  Any court, from the lowest to the United 
States Supreme Court, may consider such a claim of 
unconstitutionality, though normally it must be 
raised at the earliest opportunity to be considered 
at all.  The United States Supreme Court has the 
discretion to review nearly all cases coming from 
the lower federal courts or from the states' highest 

8.  Detention pursuant to a statute believed to be 
unconstitutional or as a result of a procedure that 
allegedly violated a constitutional right may be 
challenged by a writ of habeas corpus in state 
and/or federal court.  To a limited degree, post-
conviction relief is also available by state and 
federal writs of habeas corpus or, in the case of 
federal convictions, by a motion for relief from a 
sentence (see 28 U.S.C.    2241-55).  All states 
have similar remedies as part of their criminal 

9.  The federal government may prosecute criminally 
the violations of some civil rights.  Section 241 of 
Title 18, U.S. Code, prohibits conspiracies to 
interfere with rights secured to all inhabitants of 
the United States by the Constitution, by federal 
laws, and by federal court decisions interpreting 
both of them.   Section 242 of Title 18 prohibits 
any act  under color of law  that interferes with a 
protected right.  Abuse of police power, denying 
rights guaranteed by the Bill of Rights (the first 
ten amendments) but most often, denials of due 
process, can be reached under these statutes, 
subject to doctrines of immunity.  The government 
may also bring criminal prosecutions for use of 
force or threat of force to violate a person's 
rights under the 1964 Civil Rights Act.  18 U.S.C.   

10.  In addition to the remedies discussed above, 
federal, state and local officials, as well as 
private persons, who violate the rights of others 
may be subject to prosecution under a host of 
generic federal and state criminal statutes (see, 
for example, the discussion under Article 6). U.S.  
Department of Defense personnel may also be subject 
to criminal prosecution under the Uniform Code of 
Military Justice (10 U.S.C.   801-946) of the U.S. 

Publicity and Education.  People in the United 
States are very aware of their rights.  As discussed 
in Part I, the text of the Covenant, as well as its 
legislative history in the United States and 
numerous commentaries, are available to any 
interested person through libraries, Congressional 
and other publications and computer databases.  
Throughout the United States, students at all levels 
receive extensive instruction in fundamental civil 
and political rights.  The federal government has 
sent copies of the Covenant to the Attorneys General 
of each state and constituent unit in the United 
States, with the request that they be further 
distributed to all relevant officials, and U.S. 
government officials have participated in a number 
of public presentations highlighting the 
significance of U.S. ratification.  This report will 
be widely distributed by the U.S. Government, bar 
associations, and human rights organizations.    

U.S. Understandings.  Despite the strength and 
breadth of the equal protection guarantees afforded 
all individuals under the Constitution and the 
various federal and state statutory schemes, the 
prohibitions against non-discrimination in U.S. law 
are not open-ended.  Discrimination is prohibited 
only for specific statuses, and there are exceptions 
which allow for distinctions.  For example, even 
under the generally protective Age Discrimination 
Act of 1975, 42 U.S.C.    6101-07, age may be taken 
into account in certain circumstances.  In addition, 
U.S. law permits additional distinctions, such as 
between citizens and noncitizens and between 
different categories of noncitizens, especially in 
the context of the immigration laws.  Noting that 
the Human Rights Committee itself has acknowledged, 
in General Comment 18 [37], that not all 
differentiation of treatment constitutes 
discrimination, the United States felt it 
appropriate to state clearly, through an 
understanding included in its instrument of 

     That the Constitution and laws of the United 
States guarantee all persons equal protection of the 
law and provide extensive protections against 
discrimination.  The United States understands 
distinctions based upon race, color, sex, language, 
religion, political or other opinion, national or 
social origin, property, birth or any other status -
- as those terms are used in Article 2, paragraph 1 
and Article 26 -- to be permitted when such 
distinctions are, at minimum, rationally related to 
a legitimate governmental objective.

In addition, the United States stated its 
understanding that the prohibition in paragraph 1 of 
Article 4 upon discrimination in time of emergency 
based "solely" on status of race, color, sex, 
language, religion or social origin does not 
prohibit distinctions that may have a 
disproportionate effect upon persons of a particular 
To the top of this page