STRICT SCRUTINY

A standard ofjudicial reviewfor a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.

The strict scrutiny standard of judicial review is based on the equal protection clause of the Fourteenth Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution.

The strict scrutiny standard is one of three employed by the courts in reviewing laws and government policies. The rational basis test is the lowest form of judicial scrutiny. It is used in cases where a plaintiff alleges that the legislature has made an arbitrary or irrational decision. When employed, the rational basis test usually results in a court upholding the constitutionality of the law, because the test gives great deference to the legislative branch. The heightened scrutiny test is used in cases involving matters of discrimination based on sex. As articulated in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), "classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives."

Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny.

Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.

The case of roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which invalidated state laws that prohibited abortion, illustrates the application of strict scrutiny. The Court held that the right to privacy is a fundamental right and that this right "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Based on these grounds, the Court applied strict scrutiny. The state of Texas sought to proscribe all abortions and claimed a compelling state interest in protecting unborn human life. Though the Court acknowledged that this was a legitimate interest, it held that the interest does not become compelling until that point in pregnancy when the fetus becomes "viable" (capable of "meaningful life outside the mother's womb"). The Court held that a state may prohibit abortion after the point of viability, except in cases where abortion is necessary to preserve the life or health of the mother, but the Texas law was not narrowly tailored to achieve this objective. Therefore, the state did not meet its burden of proof and the law was held unconstitutional.

cross-references

Civil Rights; Equal Protection; Sex Discrimination; Voting.

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