Strict Scrutiny

Strict Scrutiny is the standard under the Equal Protection Clause that federal courts use to assess the constitutionality of governmental classifications based on race as well as those that impinge on fundamental constitutional rights. Until the mid‐1970s, strict scrutiny also applied to classifications based on alienage (see Graham v. Richardson, 1971).

To pass muster, a challenged governmental action must be “closely” related to a “compelling” governmental interest. As such, strict scrutiny is the most rigorous of the three levels of scrutiny that courts have formulated. Ordinary (minimum) scrutiny applies to most bases on which government classifies people and their activities—for example, economic and social considerations such as wealth (or the lack of it). This test merely requires government to show that the classificatory scheme “reasonably” relates to a “legitimate” governmental interest. An intermediate level, called “heightened scrutiny,” applies to classifications based on gender and illegitimacy. Here, the governmental action must be “substantially” related to an “important” governmental interest (see Intermediate Scrutiny).

In contrast to ordinary scrutiny, where courts presume that the legislation or challenged governmental activity is constitutional and the plaintiff has the burden of showing a constitutional violation, strict scrutiny assumes that it is unconstitutional and the government has the burden of demonstrating its compelling interest. Courts must focus on government's purpose rather than merely on the effect of governmental action to determine the validity of a challenged law or regulation. The Court held in Washington v. Davis (1976) that, to be unconstitutional under the Fourteenth Amendment, discrimination must be intentional.

The difference between a “close” and a “substantial” relationship and the difference between a “compelling” and a “substantial” governmental interest are not delineated by a bright line. The Court has indicated, however, that a close relationship is one that adheres to the “least restrictive” or “least intrusive” means of regulation, and the likelihood that an interest is compelling is greater if it pertains to public health or safety than if it concerns mere administrative convenience or fiscal considerations. There are few cases in which a challenged statute has passed the test of strict scrutiny.

See also Bill of Rights; Preferred Freedoms Doctrine.

Harold J. Spaeth