Also known as: close examination · exacting examination · strict scrutiny · heightened scrutiny
Written by attorneys — see sources below.
A rigorous standard of judicial review applied to laws that burden fundamental rights or employ suspect classifications. The government must prove that the challenged measure is necessary to serve a compelling interest and is narrowly tailored to achieve that interest.
Corinne Cho, a Santeria priestess, challenged a city ban on animal sacrifice that singled out her religion's practices. The court subjected the ordinance to close and exacting examination because it was not neutral or generally applicable. The city could not show the ban was necessary to any compelling interest in public health, so the law fell.
Cassandra Cooper, a non-minority contractor, sued after the city awarded set-asides only to minority firms without evidence of past discrimination in the local industry. The court applied close and exacting examination because the program used racial classifications. General assertions of societal discrimination proved insufficient, and the set-asides were invalidated.
Claire Campbell, who ran a religious foster agency, refused to certify same-sex couples under a city rule that allowed officials to grant individualized exemptions. The court subjected the policy to close and exacting examination because the discretionary exemptions made it not generally applicable. The city failed to satisfy strict scrutiny and could not enforce the rule against the agency.
Charlotte Chung and her husband sought contraceptives from a state clinic but were turned away under a statute criminalizing their use by married persons. The court gave the law close and exacting examination because it invaded the fundamental right of marital privacy. The state could not justify the ban as necessary to any compelling interest, so the statute was struck down.
Continental Bank wished to spend corporate funds on a ballot initiative opposing a state income tax. The court subjected the spending ban to close and exacting examination because it restricted core political speech. The state could not demonstrate that the prohibition was narrowly tailored to a compelling interest in preventing corruption.
Mass. Gen. Laws Ann., ch. 55, § 8 prohibits banks and business corporations from making contributions or expenditures for the purpose of influencing the vote on any referendum question other than one materially affecting the corporation's property, business, or assets. The statute also specifies that no question solely concerning the taxation of individuals would be deemed to have such an effect. Appellants, the First National Bank of Boston, New England Merchants National Bank, the Gillette Company, Digital Equipment Corporation, and Wyman-Gordon Company, wished to spend corporate funds to publicize their opposition to a proposed constitutional amendment authorizing the legislature to impose a graduated personal income tax. That amendment was scheduled for submission to voters on November 2, 1976. Appellants brought suit in the Supreme Judicial Court of Massachusetts seeking a declaration that the statute was unconstitutional as applied to their proposed expenditures. The case was submitted on an expedited basis upon agreed facts to a single justice of that court, who referred the matter to the full bench the same day. The statement of agreed facts reflected disagreement among economists on whether a graduated personal income tax would affect corporate business or assets. Appellants' management nevertheless believed the tax would have a significant effect on their businesses. The Supreme Judicial Court upheld the statute in a 1973 decision. After the United States Supreme Court vacated the judgment and remanded for further consideration in light of Buckley v. Valeo, the Massachusetts court again upheld the statute in a February 1977 opinion. It construed the law to bar the proposed corporate expenditures on the individual-tax referendum. Although the November 1976 referendum was held and the amendment defeated, the United States Supreme Court addressed the merits. The controversy fell within the class of cases capable of repetition yet evading review. Similar graduated-income-tax amendments had been submitted to voters four times in recent years. The interval between legislative authorization and election was only about eighteen months. The statute prescribed a maximum fine of $50,000 for a violating corporation. It also prescribed a maximum fine of $10,000 or imprisonment for up to one year, or both, for a violating corporate officer, director, or agent.
View caseCade Carpenter, a voter in a newly drawn district, challenged the legislature's map that connected distant minority neighborhoods while splitting rural counties. The court applied close and exacting examination because race appeared to be the predominant factor subordinating traditional districting criteria. Maximizing majority-minority districts was not a compelling interest, and the plan failed.
After the 1990 census showed that Georgia's population entitled it to an eleventh congressional seat, the General Assembly adopted redistricting guidelines requiring equal population, contiguity, nondilution of minority voting strength, and compliance with sections 2 and 5 of the Voting Rights Act before considering other factors such as preserving political subdivisions. The legislature submitted an initial plan creating two majority-minority districts and one additional district with a 35 percent black voting-age population, but the Department of Justice refused preclearance on January 21, 1992, stating that the plan failed to recognize certain minority populations. The General Assembly enacted a second plan that increased black populations in three districts, yet the Department of Justice again refused preclearance, pointing to alternative plans that created three majority-minority districts through a Macon/Savannah trade. Using the ACLU's max-black plan as a benchmark, the legislature then passed a final plan that created the Eleventh District by transferring black populations from Macon to the Second District and extending the Eleventh to include Savannah, resulting in a district that split twenty-six counties. On January 13, 1994, five white voters registered in the Eleventh District filed suit against state officials in the United States District Court for the Southern District of Georgia, alleging that the district was a racial gerrymander. A three-judge panel received evidence including the Justice Department's objection letters, testimony from the operator of Georgia's reapportionment computer, the State's admissions that portions of Effingham and Chatham Counties were added solely to increase the black population, and expert reports showing fractured political and economic interests within the district. The District Court found that race was the overriding and predominant factor explaining the Eleventh District's irregular boundaries and invalidated the plan. Appellants appealed, the Supreme Court granted a stay, and later noted probable jurisdiction over the direct appeal.
View caseClose and exacting examination applies when a law burdens a fundamental right such as voting or marital privacy or employs a suspect classification such as race. The government then bears the burden of proving the measure is necessary to a compelling interest and narrowly tailored.
Close and exacting examination demands that the law be necessary to a compelling interest and narrowly tailored, the highest level of scrutiny. Intermediate scrutiny requires only an important interest and substantial relation, a less demanding standard used for gender classifications.
The government must identify a compelling interest and demonstrate that the challenged law is the least restrictive means of achieving it. General assertions of societal problems or administrative convenience do not suffice.
…law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehr v. Lewin , 74 Haw. 530, 852 P. 2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its…