In the Crown Heights riots (1991) in Brooklyn, New York, Lemrick Nelson was on trial for violation of federal civil rights laws (he allegedly killed a Jewish student). The district court judge, Judge Trager, using "nontraditional" methods, attempted to create diversity on the jury by using ethnic criteria (blacks and Jews) in an attempt to reflect the actual ethnic makeup of Brooklyn (Wilkenfeld, 2002). The Second Circuit Court, however, "struck down" judge Trager's construction of an ethnically reflective jury; the Second Circuit held that Trager's court "violated the Equal Protection Clause." The circuit explained that "...potential jurors' Fourteenth Amendment rights to be free from racially discriminatory state action preclude treating individual jurors differently based on a desire to maintain a certain aggregate jury composition" (Wilkenfeld, 2002), according to an account in the Columbia Law Review. An article in the Journal of Supreme Court History (Bressman, 2007) reviews another case that relates to the Fourteenth, this one not dealing with race but rather gender, and it offers another perspective on the Equal Protection standard. Albeit this case does not fall under the category of affirmative action, it certainly relates to fairness in terms of minorities (women were previously classified along with African-Americans, Latinos, Asians and Native Americans as "minorities"). The case was Goesaert v. Cleary; a woman was denied the right to obtain a bartending license in Michigan "unless she be 'the wife or daughter of the male owner' of a licensed liquor establishment" (Bressman, p. 88).

In this 1948 case, Goesaert sued as a challenge to the validity of the law "...on the ground that is impinged on the Equal Protection Clause...

The contention in specifics was that the law unfairly and "unjustly" discriminated between the wives and daughters of male bar owners and non-owners.
But Supreme Court Justice Felix Frankfurter's opinion upheld a lower court's decision, which was that the state of Michigan's motive was justified because the job of bartending "could potentially lead to moral and social problems for women" (Bressman, p. 88). Such an argument assumes that when a male bar owner is nearby, the female bartender would be less likely to face immoral situations. Frankfurter, Bressman explains, relied on the "rational basis test" for equal protection; in other words, is it reasonable for state purposes to "treat two classes of people differently"? Apparently the Court rejected the argument that this Michigan law was "an unchivalrous desire of male bartenders to try to monopolize the calling." What the case shows, as well, is that there are many interpretations and justifications for use of the Fourteenth when it comes to race, and gender.

Works Cited

Bressman, Jeremy. "A New Standard of Review: Craig v. Boren and Brennan's 'Heightened

Scrutiny' Test in Historical Perspective." Journal of Supreme Court History 32.1 (2007):

University of Minnesota Sociology Department. "Fullilove et al., Petitioners, v. Philip M.

Klutznick, Secretary of Commerce of the United States, et al." Retrieved November 25, 2008 at http://www.soc.umn.edu/~samaha/cases/fullilove_v_klutznick.html.

Wilkenfeld, Joshua. "Newly Compelling: Reexamining Judicial Construction of Juries in the Aftermath of Grutter v. Bollinger." Columbia Law Review 104.2291 (2004): 2291-2305.