Strict scrutiny places the burden of proof on the government to show that a law in question

Strict scrutiny is the highest form of review that courts use to evaluate the constitutionality of laws. Under a strict scrutiny analysis, a law that restricts freedom of speech must achieve a compelling government interest and be narrowly tailored to that interest or be the least speech-restrictive means available to the government. Strict scrutiny also is used when a law targets a specific religious faith.

Strict scrutiny is the highest form of judicial review that courts use to evaluate the constitutionality of laws, regulations or other governmental policies under legal challenge. As Justice David Souter famously wrote in his dissenting opinion in Alameda Books v. City of Los Angeles (2002), “Strict scrutiny leaves few survivors.” This means when a court evaluates a law using strict scrutiny, the court will usually strike down the law. 

Strict scrutiny applied when laws restrict speech rights based on viewpoint or content

In First Amendment free-speech law, content-based and viewpoint-based laws are evaluated under strict scrutiny as opposed to the lower standards of review — intermediate scrutiny or rational basis. Under strict scrutiny, the government must show that there is a compelling, or very strong, interest in the law, and that the law is either very narrowly tailored or is the least speech restrictive means available to the government.

For example, the U.S. Supreme Court in 2004 invalidated a federal law known as the Child Online Protection Act (COPA) because it did not survive strict scrutiny. The law sought to address the deleterious effects of online pornography by making it illegal to post on the internet any communication for commercial purposes that is harmful to minors. The Supreme Court found that the government had a compelling governmental interest in protecting minors from harm. However, the court found in Ashcroft v. ACLU (2004) that the law failed strict scrutiny because the restrictions it put on free speech were not the least restrictive available. The court reasoned that filtering or blocking software was a less speech restrictive alternative. 

Some laws have survived strict scrutiny analysis

While the use of strict scrutiny once meant “strict in theory, fatal in fact,” in recent years the Roberts Court has applied strict scrutiny in a few cases and upheld the law. For example, in Holder v. Humanitarian Law Project(2009) and Williams-Yulee v. Florida Bar (2015), the Roberts Court applied strict scrutiny but upheld the challenged laws.

Chief Justice John G. Roberts Jr. explained in Williams-Yulee, which involved a rule prohibiting judicial candidates from soliciting money, that under strict scrutiny, narrow tailoring does not mean “perfect tailoring.” Roberts acknowledged that this was a “rare case” when a law would survive strict scrutiny in a First Amendment free-speech challenge. 

Laws that target a specific religious faith also undergo most rigorous review

The court also uses strict scrutiny in free exercise of religion cases when the governmental law deliberately targets a specific religious faith. For example, in Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Supreme Court invalidated a Florida city law that targeted the Santeria religion and its practice of animal sacrifices. The court used to apply a form of strict scrutiny more frequently in free exercise clause cases, such as Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), but the court changed the standard in free exercise clause cases in Employment Division v. Smith (1990). 

If a law is considered neutral and of general applicability, the standard applied is a form of rational basis rather than strict scrutiny.   

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published on Aug. 16, 2021.

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In U.S. constitutional law, when a court finds that a law infringes a fundamental constitutional right, it may apply the strict scrutiny standard to nevertheless hold the law or policy constitutionally valid if the government can demonstrate in court that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve the compelling purpose, and uses the "least restrictive means" to achieve the purpose. Failure to show these conditions may result in a judge striking down a law as unconstitutional.

The standard is the highest and most stringent standard of judicial review and is part of the levels of judicial scrutiny that courts use to determine whether a constitutional right or principle should give way to the government's interest against observance of the principle. The lesser standards are rational basis review and exacting or intermediate scrutiny. These standards are applied to statutes and government action at all levels of government within the United States.

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 Co. (1938), one of a series of decisions testing the constitutionality of New Deal legislation. The first and most notable case in which the Supreme Court applied the strict scrutiny standard and found the government's actions constitutional was Korematsu v. United States (1944), in which the Court upheld the forced relocation of Japanese Americans in internment camps during World War II. In another case, it has been held that restricting access to unapproved prescription drugs is a compelling government interest.[1]

The burden of proof falls on the state in cases that require strict scrutiny or intermediate scrutiny, but not the rational basis.

Applicability[edit]

U.S. courts apply the strict scrutiny standard in two contexts:

• when a fundamental constitutional right is infringed,[2] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or
• when a government action applies to a "suspect classification", such as race or national origin.

To satisfy the strict scrutiny standard, the law or policy 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 a large number of individuals, and not violating explicit constitutional protections.
• be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
• be the least restrictive means for achieving that interest: there must not 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, but the Court generally evaluates it separately.

Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact" since popular perception is that most laws subjected to the 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. However, a discrepancy was found in the type of religious liberty claim, with most claims for exemption from law failing and no allegedly discriminatory laws surviving.[3] See also the cases cited below, however; several appear to permit the exemption from laws based upon religious liberty.

Harvard law professor Richard Fallon, Jr. has written that, rather than being neatly applied, under strict scrutiny, "interpretation is more varied than is often recognized",[4] a view that has been acknowledged by U.S. Supreme Court Justice, Clarence Thomas (e.g. in his dissent (part III) in Hellerstedt).[5]

The compelling state interest test is distinguishable from the rational basis test, which involves claims that do not involve a suspect class or fundamental right, but still arise under the Equal Protection Clause or Due Process Clause.

Presumption of constitutionality doesn't apply under strict scrutiny; the burden to prove the constitutionality of a law shifts to the government lawyers.

Suspect classification[edit]

The Supreme Court has established standards for determining whether a statute or policy's classification must satisfy strict scrutiny. One ruling suggested its standard might be that the relevant class must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics", or be a minority or "politically powerless".[6] Separately, the characteristics of the relevant class must have little relationship to the government's policy aims or the ability of the group's members to contribute to society.[citation needed]

The Court has consistently found that classifications based on race, national origin, and alienage 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 (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[edit]

As applied in Korematsu v. United States, which upheld the race-based exclusion order and internment during World War II of Japanese Americans who had resided on the West Coast of the United States, strict scrutiny was limited to instances of de jure 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 of a particular administrative or legislative decision 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, among others, is met:

1. the impact is so "stark and dramatic" as to be unexplainable on non-racial grounds, as in Yick Wo v. Hopkins (1886);
2. the historical background of the decision suggests intent;
3. the legislative and administrative records leading up to the decision show intent.

Notable cases[edit]

• Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942), cf. Buck v. Bell 274 U.S. 200 (1927), banning forced sterilization under certain circumstances.
• Brown v. Board of Education, 347 U.S. 483 (1954), ending segregation in public schools
• Sherbert v. Verner, 374 U.S. 398 (1963), invalidating state law denying unemployment benefits to employees fired for refusing to violate their religious belief
• Griswold v. Connecticut, 381 U.S. 479 (1965), striking down prohibition of contraceptives
• Loving v. Virginia, 897 U.S. 113 (1967), striking down prohibition of interracial marriage
• Wisconsin v. Yoder, 406 U.S. 205 (1972), striking down law requiring all minors to attend public school, thereby permitting Amish to remove their children from public schools after 8th grade
• Employment Division v. Smith, 494 U.S. 872 (1990), allowing states to deny unemployment benefits to those using illegal drugs for religious purposes
• City of Boerne v. Flores, 521 U.S. 507 (1997), holding that some zoning laws may be an undue restriction of religious freedom
• Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), allowing religious use of illegal drugs

See also[edit]

• Constitutional law
• Equal protection
• Fundamental right
• Intermediate scrutiny
• Principle of proportionality#European Union law
• Rational basis review
• Suspect classification
• Undue burden standard

References[edit]

1. ^ Currie, Peter M. (2006–2007), Restricting Access to Unapproved Drugs: A Compelling Government Interest, vol. 20, J.L. & Health, p. 309
2. ^ Roe v. Wade, 410 U.S. 113, 155 (1973) (Blackmun, J.), accessed July 5, 2011
3. ^ Winkler, Adam (April 18, 2006). "Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts". SSRN 897360 – via papers.ssrn.com.
4. ^ Fallon, Jr., Richard (2007). "Strict Judicial Scrutiny" (PDF). UCLA Law Review. 54: 1267.
5. ^ https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf[bare URL PDF]
6. ^ "Lyng v. Castillo, 477 U.S. 635 (1986)". Justia - US Supreme Court. 27 June 1986. Retrieved 9 May 2022. As a historical matter, [close relatives] have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority, or politically powerless.

What is strict scrutiny quizlet?

What is strict scrutiny?

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