Intermediate scrutiny
Encyclopedia
Intermediate scrutiny, in U.S. constitutional law
, is the second level of deciding issues using judicial review
. The other levels are typically referred to as rational basis review
(least rigorous) and strict scrutiny
(most rigorous).
In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. This should be contrasted with strict scrutiny, the higher standard of review which requires narrowly tailored and least restrictive means to further a compelling governmental interest.
, but also to state
and local government
s. Although the Fourteenth Amendment's Equal Protection Clause applies only to state and local governments, the United States Supreme Court has implied an Equal Protection limitation on the federal government through a process known as "reverse incorporation." As the Fourteenth Amendment applies directly to the states, the incorporation process was unnecessary to hold this restriction against state and local governments. Equal Protection analysis also applies to both legislative
and executive
action regardless if the action is of a substantive
or procedural nature. Judicially-crafted (common law
) rules are also valid only if they conform to the requirements of Equal Protection. See, e.g., Reed v. Campbell, 476 U.S. 852 (1986).
challenges of equal protection
and discrimination
.
An example of a court using intermediate scrutiny came in Craig v. Boren
, 429 U.S. 190 (1976), which was the first case in the United States Supreme Court which determined that statutory or administrative sex-based classifications were subject to an intermediate standard of judicial review
.
In Mississippi University for Women v. Hogan
in 1982, the United States Supreme Court ruled that the burden is on the proponent of the discrimination to establish an "exceedingly persuasive justification" for sex-based classification to be valid. As such, the Court applied intermediate scrutiny in a way that is closer to strict scrutiny
and in recent decisions the Court has preferred the term "exacting scrutiny" when referring to the intermediate level of Equal Protection analysis. For example the Court applied similar exacting intermediate scrutiny when ruling on sex-based classifications in the education environment in both J.E.B. v. Alabama and United States v. Virginia
.
The courts have found such scrutiny necessary for a number of reasons. Rationally, imposing legal burdens on an illegitimate person in order to express disapproval of the conduct of her parents is illogical, unjust, and contrary to the fundamental principle that legal burdens should have some relationship to individual wrongdoing. Like race or gender, the court has stressed that an illegitimate person's status of birth is a condition over which she has no control, and it has no bearing on her ability or willingness to contribute to society. In applying increasingly exacting intermediate scrutiny, the courts have noted that, like African Americans, illegitimate persons are a stigmatized minority, are vastly outnumbered politically, and are the target of long-standing and continuing invidious legal discrimination. For all these reasons, exacting constitutional scrutiny is mandated under the Equal Protection clause of the Fourteenth Amendment.
An additional ground for heightening scrutiny of illegitimacy-based discriminatory statutes occurs whenever such statutes involve sex discrimination (as they commonly do). Following a sweep of legislative changes in almost every state in the early 19th century all nonmarital children were legitimated as to their mothers. Each such child remained illegitimate as to her male parent, only. This gender-based classification disadvantaged male parents and privileged female parents in their fundamental familial relationship to their child. Such gender discrimination was held an additional grounds for intermediate scrutiny of statutory denial of the father-child relationship in cases such as Caban v. Mohammed, 441 U.S. 380 (1979).
517 US 620 (1996), which struck down an amendment to the Colorado Constitution that invalidated legal protections based on sexual orientation, the United States Supreme Court held that the amendment violated the Equal Protection Clause because the amendment was motivated by a bare desire to harm a politically unpopular group, which is never a legitimate governmental interest. In a more recent case, Lawrence v. Texas
, 539 US 558 (2003), the Court explicitly overturned its earlier Bowers v. Hardwick
478 U.S. 186 (1986) decision in striking down sodomy laws as unconstitutional but did not specify the level of scrutiny it applied. In Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004), the United States Court of Appeals for the Eleventh Circuit
explicitly held that Lawrence did not apply strict scrutiny. However, in 2008, the California Supreme Court, In re Marriage Cases
, held that statutes that discriminate on the basis of sexual orientation should be subject to strict scrutiny
.
When deciding if a restriction is narrowly tailored, courts consider the setting of the communication. Setting has two divisions: public forum and non- public forum. In a public forum people have a right to express themselves however, not in a non-public forum. Adderley v. Florida, 385 U.S. 39 (1966) held that freedom of speech may be limited in a jailhouse because a jailhouse is not a public forum therefore speech is subject to restriction. The court in Adderley v. Florida used the Rational Basis test standard of review even though the law was content neutral because a jailhouse is a non-public forum.
Ward v. Rock Against Racism, 491 U.S. 781 (1989) held that a city’s restriction on loud music volume controlled by equipment and technicians is constitutional because it is narrowly tailored. Madsen v. Women’s Health Center, 512 U.S. 753 (1994) upheld part of an injunction restricting abortion protesters from entering the “buffer zone” around the abortion clinic because this was the least restrictive means and still gave protestors ample opportunity to communicate outside the buffer zone on the sidewalk, which was a public forum. The court used the Strict Scrutiny standard of review in Madsen v. Women’s Health Center.
Intermediate scrutiny applies to regulation that does not directly target speech but has a substantial impact on a particular message. It applies to time, place, and manner restrictions on speech, for example, with the additional requirement of "adequate alternative channels of communication." In other words, if restricting the time, place, or manner of speech means that speech cannot take place at all, the regulation fails intermediate scrutiny. It has been used in "erogenous zoning" cases such as Renton v. Playtime Theatres, Inc.
, 475 U.S. 41 (1986), that limit the concentration or require concentration of certain types of establishments. It has also been used for other types of content-neutral regulation, as well as for content-neutral speech compulsion. Intermediate scrutiny also applies to regulation of commercial speech, as long as the state interests in regulating relate to fair bargaining. Regulation for other reasons, such as protection of children, are subject to strict scrutiny.
, 527 F.3d 806 (9th Cir. 2008), the United States Court of Appeals for the Ninth Circuit
ruled that the law commonly known as "don't ask, don't tell" (DADT) was subject to "heightened" scrutiny based on its analysis of Lawrence. The court articulated a three-pronged test for heightened scrutiny. To pass, the law "must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest". This differs from the two-pronged test for "intermediate" scrutiny. As the Obama administration chose not to appeal Witt to the Supreme Court, it is binding precedent on the Ninth Circuit and it has been cited as such in Log Cabin Republicans v. United States, another case challenging the constitutionality of DADT. The District court in LCR applied the three-pronged test in ruling DADT unconstitutional. The administration appealed this decision to the Ninth Circuit but in the face of the December 2010 legislative repeal of DADT the legal ramifications of these decisions are unclear.
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
, is the second level of deciding issues using judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. The other levels are typically referred to as rational basis review
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
(least rigorous) and strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
(most rigorous).
In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. This should be contrasted with strict scrutiny, the higher standard of review which requires narrowly tailored and least restrictive means to further a compelling governmental interest.
Laws subject to Equal Protection scrutiny
Constitutional Equal Protection analysis applies not only to challenges against the federal governmentFederal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
, but also to state
State government
A state government is the government of a subnational entity in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or be subject to the direct control of the federal government...
and local government
Local government
Local government refers collectively to administrative authorities over areas that are smaller than a state.The term is used to contrast with offices at nation-state level, which are referred to as the central government, national government, or federal government...
s. Although the Fourteenth Amendment's Equal Protection Clause applies only to state and local governments, the United States Supreme Court has implied an Equal Protection limitation on the federal government through a process known as "reverse incorporation." As the Fourteenth Amendment applies directly to the states, the incorporation process was unnecessary to hold this restriction against state and local governments. Equal Protection analysis also applies to both legislative
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
and executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
action regardless if the action is of a substantive
Substantive due process
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...
or procedural nature. Judicially-crafted (common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
) rules are also valid only if they conform to the requirements of Equal Protection. See, e.g., Reed v. Campbell, 476 U.S. 852 (1986).
Gender-based classifications
In the context of sex-based classifications, intermediate scrutiny applies to ConstitutionalUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
challenges of equal protection
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
and discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
.
An example of a court using intermediate scrutiny came in Craig v. Boren
Craig v. Boren
Craig v. Boren, , was the first case in which a majority of the United States Supreme Court determined that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review...
, 429 U.S. 190 (1976), which was the first case in the United States Supreme Court which determined that statutory or administrative sex-based classifications were subject to an intermediate standard of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
.
In Mississippi University for Women v. Hogan
Mississippi University for Women v. Hogan
Mississippi University for Women v. Hogan, 458 U.S. 718 was a case decided 5-4 by the Supreme Court of the United States. The court held that the single-sex admissions policy of the Mississippi University for Women violated the Equal Protection Clause of the Fourteenth Amendment to the United...
in 1982, the United States Supreme Court ruled that the burden is on the proponent of the discrimination to establish an "exceedingly persuasive justification" for sex-based classification to be valid. As such, the Court applied intermediate scrutiny in a way that is closer to strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
and in recent decisions the Court has preferred the term "exacting scrutiny" when referring to the intermediate level of Equal Protection analysis. For example the Court applied similar exacting intermediate scrutiny when ruling on sex-based classifications in the education environment in both J.E.B. v. Alabama and United States v. Virginia
United States v. Virginia
United States v. Virginia, , is a case in which the Supreme Court of the United States struck down the Virginia Military Institute's long-standing male-only admission policy in a 7-1 decision...
.
Illegitimacy
Restrictions based on illegitimacy are also subjected to intermediate scrutiny in the Equal Protection context. Reed v. Campbell, 476 U.S. 852 (1986).The courts have found such scrutiny necessary for a number of reasons. Rationally, imposing legal burdens on an illegitimate person in order to express disapproval of the conduct of her parents is illogical, unjust, and contrary to the fundamental principle that legal burdens should have some relationship to individual wrongdoing. Like race or gender, the court has stressed that an illegitimate person's status of birth is a condition over which she has no control, and it has no bearing on her ability or willingness to contribute to society. In applying increasingly exacting intermediate scrutiny, the courts have noted that, like African Americans, illegitimate persons are a stigmatized minority, are vastly outnumbered politically, and are the target of long-standing and continuing invidious legal discrimination. For all these reasons, exacting constitutional scrutiny is mandated under the Equal Protection clause of the Fourteenth Amendment.
An additional ground for heightening scrutiny of illegitimacy-based discriminatory statutes occurs whenever such statutes involve sex discrimination (as they commonly do). Following a sweep of legislative changes in almost every state in the early 19th century all nonmarital children were legitimated as to their mothers. Each such child remained illegitimate as to her male parent, only. This gender-based classification disadvantaged male parents and privileged female parents in their fundamental familial relationship to their child. Such gender discrimination was held an additional grounds for intermediate scrutiny of statutory denial of the father-child relationship in cases such as Caban v. Mohammed, 441 U.S. 380 (1979).
Sexual orientation
Courts have been reluctant to apply intermediate scrutiny to cases centered around sexual orientation. For instance, in Romer v. EvansRomer v. Evans
Romer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...
517 US 620 (1996), which struck down an amendment to the Colorado Constitution that invalidated legal protections based on sexual orientation, the United States Supreme Court held that the amendment violated the Equal Protection Clause because the amendment was motivated by a bare desire to harm a politically unpopular group, which is never a legitimate governmental interest. In a more recent case, Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
, 539 US 558 (2003), the Court explicitly overturned its earlier Bowers v. Hardwick
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
478 U.S. 186 (1986) decision in striking down sodomy laws as unconstitutional but did not specify the level of scrutiny it applied. In Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004), the United States Court of Appeals for the Eleventh Circuit
United States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
explicitly held that Lawrence did not apply strict scrutiny. However, in 2008, the California Supreme Court, In re Marriage Cases
In re Marriage Cases
In re Marriage Cases 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], was a California Supreme Court case with the dual holding that "statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny" and the existing "California legislative and...
, held that statutes that discriminate on the basis of sexual orientation should be subject to strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
.
Free speech
There are two types of laws affecting “free speech” among U.S. citizens: content-based and content-neutral. In the free speech context, intermediate scrutiny is the test or standard of review that courts apply when analyzing content-neutral speech verses content-based speech. Content-based speech is reviewed under strict scrutiny in which courts evaluate the value of the subject matter or the content of the communication. Content-neutral laws are evaluated by the nature and scope of the speech regarding the time, place and manner of communication. Content-neutral speech is reviewed under intermediate scrutiny versus strict scrutiny because this speech is only restricted by the way in which the information is communication; not the information itself. U.S. v. O’Brien, 391 U.S. 367 (1968) established a 4 factor test to determine whether restricting content-neutral speech is constitutional: (1) Is restriction within the constitutional power of government, (2) Does restriction further important or substantial governmental interest, (3) Is the governmental interest unrelated to the suppression of free expression, (4) Is the restriction narrowly tailored- no greater than necessary. Later, a fifth factor was added in Ladue v. Gilleo, 512 U.S. 43 (1994): (5) whether the restriction leaves open ample opportunities of communication.When deciding if a restriction is narrowly tailored, courts consider the setting of the communication. Setting has two divisions: public forum and non- public forum. In a public forum people have a right to express themselves however, not in a non-public forum. Adderley v. Florida, 385 U.S. 39 (1966) held that freedom of speech may be limited in a jailhouse because a jailhouse is not a public forum therefore speech is subject to restriction. The court in Adderley v. Florida used the Rational Basis test standard of review even though the law was content neutral because a jailhouse is a non-public forum.
Ward v. Rock Against Racism, 491 U.S. 781 (1989) held that a city’s restriction on loud music volume controlled by equipment and technicians is constitutional because it is narrowly tailored. Madsen v. Women’s Health Center, 512 U.S. 753 (1994) upheld part of an injunction restricting abortion protesters from entering the “buffer zone” around the abortion clinic because this was the least restrictive means and still gave protestors ample opportunity to communicate outside the buffer zone on the sidewalk, which was a public forum. The court used the Strict Scrutiny standard of review in Madsen v. Women’s Health Center.
Intermediate scrutiny applies to regulation that does not directly target speech but has a substantial impact on a particular message. It applies to time, place, and manner restrictions on speech, for example, with the additional requirement of "adequate alternative channels of communication." In other words, if restricting the time, place, or manner of speech means that speech cannot take place at all, the regulation fails intermediate scrutiny. It has been used in "erogenous zoning" cases such as Renton v. Playtime Theatres, Inc.
Renton v. Playtime Theatres, Inc.
Renton v. Playtime Theatres, Inc., 475 U.S. 41 , was a case in which the Supreme Court of the United States held that localities may impose regulations prohibiting adult theaters from operating within certain areas, finding that the regulation in question was a content-neutral time/place/manner...
, 475 U.S. 41 (1986), that limit the concentration or require concentration of certain types of establishments. It has also been used for other types of content-neutral regulation, as well as for content-neutral speech compulsion. Intermediate scrutiny also applies to regulation of commercial speech, as long as the state interests in regulating relate to fair bargaining. Regulation for other reasons, such as protection of children, are subject to strict scrutiny.
"Intermediate" versus "heightened"
The phrase "heightened scrutiny" has been used interchangeably with "intermediate scrutiny" but it is unclear if the two are actually legally interchangeable. In Witt v. Department of the Air ForceWitt v. Department of the Air Force
Witt v. Department of the Air Force, 527 F.3d 806 is a federal lawsuit challenging the constitutionality of , the now repealed law which excluded openly homosexual people from serving in the United States military, commonly known as Don't ask, don't tell . The United States Court of Appeals for...
, 527 F.3d 806 (9th Cir. 2008), the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
ruled that the law commonly known as "don't ask, don't tell" (DADT) was subject to "heightened" scrutiny based on its analysis of Lawrence. The court articulated a three-pronged test for heightened scrutiny. To pass, the law "must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest". This differs from the two-pronged test for "intermediate" scrutiny. As the Obama administration chose not to appeal Witt to the Supreme Court, it is binding precedent on the Ninth Circuit and it has been cited as such in Log Cabin Republicans v. United States, another case challenging the constitutionality of DADT. The District court in LCR applied the three-pronged test in ruling DADT unconstitutional. The administration appealed this decision to the Ninth Circuit but in the face of the December 2010 legislative repeal of DADT the legal ramifications of these decisions are unclear.
See also
- Craig v. BorenCraig v. BorenCraig v. Boren, , was the first case in which a majority of the United States Supreme Court determined that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review...
- Renton v. Playtime Theatres, Inc.Renton v. Playtime Theatres, Inc.Renton v. Playtime Theatres, Inc., 475 U.S. 41 , was a case in which the Supreme Court of the United States held that localities may impose regulations prohibiting adult theaters from operating within certain areas, finding that the regulation in question was a content-neutral time/place/manner...
- Mississippi University for Women v. HoganMississippi University for Women v. HoganMississippi University for Women v. Hogan, 458 U.S. 718 was a case decided 5-4 by the Supreme Court of the United States. The court held that the single-sex admissions policy of the Mississippi University for Women violated the Equal Protection Clause of the Fourteenth Amendment to the United...