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.

Cross-references

Civil Rights; Equal Protection; Sex Discrimination; Voting.

References in periodicals archive ?
Some argued that because it involved speech, the court could uphold it only if it met strict scrutiny, that is, that it was justified by a compelling governmental interest and was narrowly tailored to meet that goal, using the least restrictive means to do so.
Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.
Depending on which test is employed, the Court asks whether the regulation serves a compelling governmental interest or an important governmental interest or a legitimate governmental interest.
6) In that case, the Supreme Court rejected prior First Amendment freedom of religion precedent, which required the government to prove it was using the least restrictive means to accomplish a compelling governmental interest if it was going to substantially burden the free exercise of religion.
According to the Court, Congress, in passing RFRA, wanted to reaffirm a previously held view that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless it "demonstrates that application of the burden to the person--(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
Hobbs, the Supreme Court identified this as a compelling governmental interest.
According to the Court, other than in unemployment benefits cases like Sherbert, it always found a sufficiently compelling governmental interest to justify burdening religious exercise.
If government compulsion, capable of destroying any citizen, is to impose a substantial burden (not just an inconvenience) on a citizen, the acts require that the government demonstrate that the burden is the least restrictive means of achieving a compelling governmental interest.
The committee representing the claimants argued that there is a compelling governmental interest in protecting creditors, and the appellate court agreed, saying this interest "can overcome a burden of the free exercise of religion.
The Court based its decision on its finding that the ObamaCare mandate was not "the least restrictive means of furthering [a] compelling governmental interest.
The RFRA prohibits the "Government [from] substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government "demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
And if Arizona's legislature one day decided to prohibit discrimination based on sexual orientation, the ban could still be upheld as "the least restrictive means of furthering [a] compelling governmental interest.