Strict scrutiny
Encyclopedia
Strict scrutiny is the most stringent 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...

 used by United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 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
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...

 and exacting or intermediate scrutiny
Intermediate scrutiny
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 and strict scrutiny ....

. These standards are used to test statutes and government action at all levels of government within the U.S.

The notion of "levels of judicial scrutiny", including strict scrutiny, was introduced in footnote 4 of the U.S. Supreme Court decision in United States v. Carolene Products (1938), one of a series of decisions testing the constitutionality of New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...

 legislation. The first and most notable case in which the Supreme Court applied the strict scrutiny standard and found the government actions valid was Korematsu v. United States
Korematsu v. United States
Korematsu v. United States, 323 U.S. 214 , was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II....

(1944), in which the Court upheld the exclusion of Japanese American
Japanese American
are American people of Japanese heritage. Japanese Americans have historically been among the three largest Asian American communities, but in recent decades have become the sixth largest group at roughly 1,204,205, including those of mixed-race or mixed-ethnicity...

s from designation areas during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...

. Statutes and policies that are subjected to strict scrutiny often but not always fail to meet it.

Applicability

U.S. courts apply the strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...

 and those the court has deemed a fundamental right protected by the "liberty" or "due process" clause of the 14th Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

, or when a government action applies to a "suspect classification
Suspect classification
In American jurisprudence, a suspect classification is any classification of groups meeting a series of criteria suggesting they are likely the subject of discrimination...

" such as race or, sometimes, national origin.

To pass strict scrutiny, the law or policy must satisfy three tests:
It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad
Overbreadth doctrine
In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment. American courts have recognized several exceptions to the speech protected by the First Amendment , and states therefore have some latitude to regulate unprotected...

) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.


Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subjected to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts found that laws survive strict scrutiny more than 30% of the time. In one area of law, religious liberty, laws that burden religious liberty survived strict scrutiny review in nearly 60% of cases.

The compelling state interest test is distinguishable from the rational basis test, which involves claims that do not involve a suspect class and involve a liberty interest rather than a fundamental right.

Suspect classification

The Supreme Court has established standards for determining whether a statute or policy's classification requires the use of strict scrutiny. The class must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics", be a minority of "politically powerless", and its characteristics must have little relationship to the government's policy aims or the ability of the group's members to contribute to society.

The Court has consistently found that classifications based on race, national origin, religion, citizenship, and poverty require strict scrutiny review. The Supreme Court held that all race-based classifications must be subjected to strict scrutiny in Adarand Constructors v. Peña, 515 U.S. 200 (1995), overruling Metro Broadcasting, Inc. v. FCC
Metro Broadcasting, Inc. v. FCC
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 , was a case decided by the Supreme Court of the United States that held that intermediate scrutiny should be applied to equal protection challenges to federal statutes using benign racial classifications. The Court distinguished the previous year's...

(89-453), 497 U.S. 547 (1990), which had briefly allowed the use of intermediate scrutiny to analyze the Equal Protection implications of race-based classifications in the narrow category of affirmative action programs established by the federal government in the broadcasting field.

De jure versus de facto discrimination

As applied in Korematsu v. United States
Korematsu v. United States
Korematsu v. United States, 323 U.S. 214 , was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II....

, a wartime decision upholding as constitutional the race-based curfew during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...

 of the Japanese American
Japanese American
are American people of Japanese heritage. Japanese Americans have historically been among the three largest Asian American communities, but in recent decades have become the sixth largest group at roughly 1,204,205, including those of mixed-race or mixed-ethnicity...

s who had resided on the West Coast of the United States, strict scrutiny was limited to instances of de jure
De jure
De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....

discrimination, where a racial classification is written into the language of a statute.

The Supreme Court's decision in Village of Arlington Heights v. Metropolitan Housing Development Corp. provided further definition to the concept of intent and clarified three particular areas in which intent becomes apparent, the presence of any of which demands the harsher equal protection test. The Court must use strict scrutiny if one of these tests is met:
  1. the impact is so "stark and dramatic" as to be unexplainable on non-racial grounds, as in Yick Wo v. Hopkins
    Yick Wo v. Hopkins
    Yick Wo v. Hopkins, 118 U.S. 356 , was the first case where the United States Supreme Court ruled that a law that is race-neutral on its face, but is administered in a prejudicial manner, is an infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S...

  2. the historical background suggests intent
  3. the legislative and administrative records show intent

Notable cases

  • Sherbert v. Verner
    Sherbert v. Verner
    Sherbert v. Verner, 374 U.S. 398 , was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required that government demonstrate a compelling government interest before denying unemployment compensation to someone who was fired because her...

    , 374 U.S. 398 (1963)
  • Wisconsin v. Yoder
    Wisconsin v. Yoder
    Wisconsin v. Yoder, 406 U.S. 205 , is the case in which the United States Supreme Court found that Amish children could not be placed under compulsory education past 8th grade, as it violated their parents' fundamental right to freedom of religion....

    , 406 U.S. 205 (1972)
  • Employment Division v. Smith
    Employment Division v. Smith
    Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 , is a United States Supreme Court case that determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was...

    , 494 U.S. 872 (1990)
  • Romer v. Evans
    Romer 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 U.S. 620 (1996)
  • City of Boerne v. Flores
    City of Boerne v. Flores
    City of Boerne v. Flores, 521 U.S. 507 , was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment...

    , 521 U.S. 507 (1997)
  • Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal
    Gonzales v. O Centro Espírita Beneficente União do Vegetal
    Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 , is a case decided by the United States Supreme Court involving the Federal Government's seizure of a sacramental tea, containing a Schedule I substance, from a New Mexican branch of the Brazilian church União do Vegetal...

    , 546 U.S. 418 (2006)

See also

  • Rational Basis Test
    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...

  • Intermediate scrutiny
    Intermediate scrutiny
    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 and strict scrutiny ....

  • Fundamental right
  • Suspect class
  • Constitutional Law
    Constitutional law
    Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

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