Strict Scrutiny

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Strict Scrutiny

A standard of Judicial Review for 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.


Civil Rights; Equal Protection; Sex Discrimination; Voting.

References in periodicals archive ?
Finally Supreme Court of Pakistan has taken notice of these irregularities and hopefully CAA undergoes strict scrutiny and forensic audit for numerous irregularities which have resulted in gross indiscipline in our aviation industry.
There is also strict scrutiny of the people of the land because of the huge influx of terrorists.
As strict scrutiny is equally important, the government must take steps to provide necessary assistance to these NGOs.
The group sought the reversal of the ruling 'for failing to pass a strict scrutiny test' and estimated that some of their arguments might have been 'overlooked and misappreciated' by the high court.
When the Supreme Court reviews laws that themselves seek to enhance or preserve constitutional rights, however, strict scrutiny does not provide the right approach.
In 2014, Missouri amended its constitution to include Amendment 5, a provision that requires the application of strict scrutiny to any law limiting the right to bear arms.
1) For only the third time in its history, the Court upheld a law subjected to strict scrutiny under the First Amendment's Free Speech Clause.
the courts have made itclear, that in order to implement a race- and gender-based program that is effective, enforceable and legally defensible, the city must meet the judicial test of constitutional strict scrutiny to determine the legality of such initiatives.
17) Strict scrutiny applies when the government denies the legal right to private speech based on government disapproval of that speech.
A circuit split exists about whether non-legal permanent residents are ever entitled to strict scrutiny, and the extent of the Executive's power over immigration remains unclear, as does the allocation of power within the executive branch.
25) Thus, it has been suggested that state action intended to benefit racial minorities arguably constitutes "suspect" racial discrimination subject to strict scrutiny even when implemented through raceneutral means.