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.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
Strict scrutiny test Turning to the merits of the challenge, Urbanski dismissed the individual party member plaintiffs because they lacked authority to direct the partys method of nomination.
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.
(85) The Supreme Court of Missouri did not define the exact strict scrutiny test in Merritt, McCoy, or Clay.
Justice Thomas, for instance, suggested (disapprovingly) that Williams-Yulee is part of a larger "tendency to relax purportedly higher standards of review for less-preferred rights." (54) Moreover, since many other areas of First and Fourteenth Amendment law employ versions of the strict scrutiny test, much of the Court's analysis in Williams-Yulee could have ripple effects beyond free speech cases.
Gageler J's compelling purpose test is similar to the 'pressing and substantial concern' test adopted in Canada, (118) and the 'compelling governmental interest' or 'pressing public necessity' standards used as part of the American strict scrutiny test. (119) As Dieter Grimm has argued in his analysis of the Canadian test, the necessarily 'correlational' or relative nature of the concept of importance indicates that such tests require courts to engage in an abstract balancing exercise to determine whether the purpose of the law is sufficiently important to justify its burden on the relevant right or freedom.
at 1355 (majority opinion) (applying Central Hudson test after performing strict scrutiny test).
"Unless the Supreme Court takes a case to clear this up and adopts the strict scrutiny test for Second Amendment claims, it's going to continue to be a problem," Sanetti said.
(46) These "presumptively lawful" regulations would likely fall at the hands of the strict scrutiny test employed by the Tyler court, as they are not necessary to further a compelling government interest.
the absence of nondiscriminatory alternatives." (441) This distinction may be primarily semantic, however, as "[a]pplying strict scrutiny properly explains most Dormant Commerce Clause precedent." (442) In other words, although courts have used outdated language to describe the strict scrutiny test of the dormant Commerce Clause, they have nevertheless been applying strict scrutiny much as a court would in an Equal Protection case, which indicates that applying intermediate scrutiny to allegedly discriminatory statutes would constitute more than a semantic shift from precedent.
That is why, in the end, staking the future of a robust free speech principle on the strict scrutiny test may be the better bet.
(73) The Act clearly meets this element of the strict scrutiny test. There is a compelling government interest in honoring and motivating the troops.