Keith Mack
Strict scrutiny is a form of judicial review used by US courts to determine the constitutionality of government actions or laws that infringe on fundamental rights or involve suspect classifications. It is the highest standard of review, with the burden of proof falling on the government to demonstrate that its actions further a “compelling government interest” and are “narrowly tailored” to achieve that interest through the “least restrictive means” possible. This standard is applied in cases involving discrimination based on race, national origin, religion, and alienage, as well as in free speech and free exercise of religion cases. The application of strict scrutiny analysis results in most laws being struck down, with the court presuming the law to be invalid unless the government can meet the stringent requirements.
| Characteristics | Values |
|---|---|
| Level of review | Strict scrutiny is the highest standard of review that a court will use to evaluate the constitutionality of government action. |
| Applicability | Strict scrutiny is applied when a law infringes upon a fundamental constitutional right or involves a suspect classification (including race, religion, national origin, and alienage). |
| Burden of proof | The burden of proof falls on the government to demonstrate that its actions were constitutional. |
| Compelling government interest | The government must show that its actions were "narrowly tailored" to further a compelling government interest. |
| Least restrictive means | The government must demonstrate that its actions were the "least restrictive means" to achieve its stated interest. |
| Outcome | If the government fails to meet the strict scrutiny standard, the challenged law will be struck down as unconstitutional. |
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What You'll Learn
Strict scrutiny and the First Amendment
Strict scrutiny is the highest standard of review that a court will use to evaluate the constitutionality of government action. It is a form of judicial review that courts in the United States use to determine the constitutionality of government action that burdens a fundamental right or involves a suspect classification, such as race, religion, national origin, and alienage.
In the context of the First Amendment, strict scrutiny is applied to content-based and viewpoint-based laws that restrict freedom of speech or religion. The government must demonstrate a compelling government interest and that the law is narrowly tailored to achieve that interest, using the least restrictive means possible. This means that the law must be the least speech-restrictive means available to the government.
For example, in the case of Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Supreme Court invalidated a Florida city law that targeted the Santeria religion and its practice of animal sacrifices. The Court found that the law failed strict scrutiny because it deliberately targeted a specific religious faith.
Another example is the case of Ashcroft v. ACLU (2004), where the Court found that the law's restrictions on free speech were not the least restrictive available. The Court reasoned that filtering or blocking software was a less speech-restrictive alternative.
In recent years, the Roberts Court has applied strict scrutiny in a few First Amendment free-speech cases and upheld the challenged laws. For instance, in Williams-Yulee v. Florida Bar (2015), the Court applied strict scrutiny to a rule prohibiting judicial candidates from soliciting money. Chief Justice John G. Roberts Jr. explained that under strict scrutiny, narrow tailoring does not mean "perfect tailoring," and acknowledged that this was a "rare case" where a law survived strict scrutiny in a First Amendment free-speech challenge.
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Strict scrutiny and free speech
Strict scrutiny is a form of judicial review used by US courts to determine the constitutionality of government actions that infringe on fundamental rights or involve suspect classifications such as race, religion, national origin, and alienage. It is the highest standard of review, and once applied, the burden of proof shifts to the government to demonstrate that its actions were constitutional.
In the context of free speech, strict scrutiny is applied to content-based and viewpoint-based laws under the First Amendment. The government must show a compelling interest in the law and that it is narrowly tailored or the least speech-restrictive means available to achieve that interest. For example, in 2004, the US Supreme Court invalidated the Child Online Protection Act (COPA) as it failed to survive strict scrutiny, despite the government's compelling interest in protecting minors from online pornography.
The Supreme Court has also clarified that intent must be considered in strict scrutiny cases. In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court provided three particular areas where the intent of a legislative decision becomes apparent, demanding the equal protection test: when the impact is so "stark and dramatic" as to be unexplainable on non-racial grounds, when the historical background suggests intent, and when legislative and administrative records show intent.
While strict scrutiny was once seen as "strict in theory, fatal in fact", the Roberts Court has recently applied it more flexibly in some cases, such as Holder v. Humanitarian Law Project (2009) and Williams-Yulee v. Florida Bar (2015), upholding the challenged laws. However, these are considered rare cases, and strict scrutiny typically results in laws being struck down.
Some scholars, like Aaron Pinsoneault, argue for the superiority of strict scrutiny over categorical approaches to free speech restrictions. Pinsoneault suggests that strict scrutiny ensures a values-driven analysis, whereas categorical approaches rely solely on American history and tradition, risking the justification of modern law based solely on historical precedent.
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Strict scrutiny and freedom of religion
Strict scrutiny is a form of judicial review used by US courts to evaluate the constitutionality of government actions that burden a fundamental right or involve a suspect classification, such as race, religion, national origin, or alienage. It is the highest standard of review, with intermediate scrutiny and the rational basis test being the other two standards. When applying strict scrutiny, courts start from a presumption of unconstitutionality, and the burden shifts to the government to demonstrate that its actions were necessary to achieve a "compelling government interest" and were narrowly tailored to achieve that interest through the least restrictive means possible.
Strict scrutiny is often applied in cases involving freedom of religion, a fundamental right protected by the First Amendment. When a governmental law deliberately targets a specific religious faith, strict scrutiny is used to evaluate the constitutionality of the law. For example, in Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Supreme Court invalidated a Florida city law that targeted the Santeria religion and its practice of animal sacrifices. The Court found that the law violated the Free Exercise Clause of the First Amendment, which protects the free exercise of religion.
In another case, Employment Division v. Smith (1990), the Supreme Court changed the standard applied in free exercise clause cases. If a law is considered neutral and generally applicable, the standard applied is a form of rational basis rather than strict scrutiny. This means that the law is evaluated based on whether it is rationally related to a legitimate government interest, rather than being subject to the higher standard of strict scrutiny.
In addition to cases involving freedom of religion, strict scrutiny is also commonly applied in First Amendment free-speech cases. Content-based and viewpoint-based laws are evaluated under strict scrutiny, and the government must demonstrate a compelling interest in the law and that it is narrowly tailored or uses the least restrictive means to achieve that interest. For example, in Ashcroft v. ACLU (2004), the Court found that restrictions on free speech imposed by the Child Online Protection Act were not the least restrictive means available, as filtering or blocking software provided a less restrictive alternative.
Overall, strict scrutiny plays a crucial role in protecting fundamental rights, including freedom of religion and freedom of speech, by ensuring that government actions that burden these rights are subject to rigorous judicial review and must meet a high standard to be upheld as constitutional.
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Strict scrutiny and equal protection
Strict scrutiny is a form of judicial review used by courts in the United States to determine the constitutionality of government actions that burden a fundamental right or involve a suspect classification, such as race, religion, national origin, or alienage. It is the highest standard of review, above intermediate scrutiny and the rational basis test. When strict scrutiny is applied, there is a presumption of unconstitutionality, and the burden shifts to the government to prove that its actions were constitutional.
In the context of equal protection, strict scrutiny is applied when a law or government action is suspected of infringing upon a fundamental constitutional right or treating a protected class of people differently. The Supreme Court has established that classifications based on race, national origin, and alienage require strict scrutiny review. For example, in Adarand Constructors v. Peña, the Court held that all race-based classifications must be subjected to strict scrutiny.
To satisfy strict scrutiny and demonstrate that a law or policy does not violate equal protection, the government must show that its actions were narrowly tailored to further a compelling government interest and that they were the least restrictive means to achieve that interest. This means that the law or policy must be justified by a compelling governmental interest, such as national security or preserving the lives of a large number of individuals, and that it is specifically tailored to achieve that interest without unnecessarily infringing on protected rights.
The Supreme Court's decision in Village of Arlington Heights v. Metropolitan Housing Development Corp. provided further clarification on when strict scrutiny is required in equal protection cases. The Court identified three particular areas where the intent of a legislative decision may trigger the need for strict scrutiny: when the impact is so "stark and dramatic" that it cannot be explained on non-racial grounds; when the historical background of the decision suggests intent; and when the legislative and administrative records leading up to the decision show intent.
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Strict scrutiny and state constitutional rights
Strict scrutiny is a form of judicial review that courts in the United States use to determine the constitutionality of government action that burdens a fundamental right or involves a suspect classification, such as race, religion, national origin, and alienage. It is the highest standard of review that a court will use to evaluate the constitutionality of government action, with intermediate scrutiny and the rational basis test being the other two standards.
In the context of state constitutional rights, strict scrutiny is applied when a law infringes upon a fundamental constitutional right, particularly those found in the Bill of Rights, or those deemed fundamental by the Due Process Clause or "liberty clause" of the 14th Amendment. For example, the Supreme Court has applied strict scrutiny in cases involving the First Amendment, such as content-based and viewpoint-based restrictions on free speech, and laws that target specific religious faiths. In these cases, the government must demonstrate a compelling interest and that the law is narrowly tailored to achieve that interest.
Additionally, strict scrutiny is applied when government action involves suspect classifications, such as race or national origin. The Supreme Court has held that all race-based classifications must be subjected to strict scrutiny, as in the case of Adarand Constructors v. Peña. The Court has also provided guidance on when strict scrutiny should be applied, such as when the impact of a decision is so "stark and dramatic" that it cannot be explained on non-racial grounds, as seen in Village of Arlington Heights v. Metropolitan Housing Development Corp.
When strict scrutiny is applied, there is a presumption of unconstitutionality, and the burden shifts to the government to prove the constitutionality of its actions. This means that the government must demonstrate that its actions were "narrowly tailored" to further a "compelling government interest" and that they used the "least restrictive means" to achieve that interest. Failure to meet this standard will result in the law being struck down as unconstitutional.
In summary, strict scrutiny is a critical tool used by courts to protect state constitutional rights by ensuring that government actions and laws that infringe upon fundamental rights or involve suspect classifications are subjected to the highest level of scrutiny and are only upheld if they meet stringent requirements.
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Frequently asked questions
Strict scrutiny is the highest standard of review that a court will use to evaluate the constitutionality of government action. It is a form of judicial review that courts in the United States use to determine the constitutionality of government action that burdens a fundamental right or involves a suspect classification (including race, religion, national origin, and alienage).
Strict scrutiny is applied when a law infringes upon a fundamental constitutional right, such as the right to privacy, religious belief, and trial by jury. It is also applied when a government action involves a suspect classification, such as race or national origin.
In strict scrutiny cases, the burden of proof falls on the government to prove that there is a compelling state interest behind the challenged policy and that the law is narrowly tailored to achieve that interest.
Some notable cases where the Supreme Court applied strict scrutiny include Korematsu v. United States (1944), Church of the Lukumi Babalu Aye v. City of Hialeah (1993), and Abigail Alliance v. von Eschenbach (2007).
In addition to strict scrutiny, there are two other main levels of scrutiny: intermediate scrutiny and the rational basis test. Intermediate scrutiny is applied in cases involving gender or sex discrimination, and the rational basis test is used for laws or regulations challenged as irrational or arbitrary, as well as discrimination based on age, disability, wealth, or felony status.
