Also known as:heightened levels of scrutiny · heightened scrutiny · intermediate scrutiny
Written by attorneys — see sources below.
A standard of judicial review more demanding than rational basis. The government must demonstrate that the challenged action serves an important or compelling interest and that the means are substantially related or narrowly tailored to that interest.
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How its tested
Common Examples
6
State Limits Contraceptive Access for Married Couples
Harold Hunt and Hilda Hernandez, a married couple, seek to fill a prescription for contraceptives at their local pharmacy. The state-owned distributor refuses to supply the pharmacy because the couple is married, citing a policy favoring larger families. The couple sues, claiming the policy burdens their marital privacy. The court applies heightened scrutiny and strikes down the restriction because the state's interest in larger families does not justify the intrusion into intimate marital decisions.
Husband Given Unilateral Control Over Marital Property
Hakim Hall and Hazel Hoffman jointly own their home. A state statute allows only the husband to sell or encumber the property without the wife's consent. Hazel challenges the law as an invalid gender classification. The court subjects the statute to heightened scrutiny and invalidates it because the classification lacks an exceedingly persuasive justification substantially related to an important governmental objective.
Helios Energy operates a cable system and objects to federal must-carry provisions requiring carriage of local broadcast stations. The company argues the rules burden its editorial discretion. The court applies heightened scrutiny to the content-neutral regulation and upholds it after finding that the rules advance important interests in preserving broadcast access without burdening substantially more speech than necessary.
State Military College Excludes Women
Harbor National Bank funds a scholarship program tied to admission at a state military college that admits only men. Hamid Hassan's daughter applies and is rejected solely because of her sex. She sues, alleging an unconstitutional gender classification. The court applies heightened scrutiny and invalidates the policy because the state fails to provide an exceedingly persuasive justification showing the exclusion is substantially related to an important objective.
Land Use Regulation Burdens Religious Exercise
Hector Hernandez seeks to expand his church on property he owns. A local zoning ordinance prevents the expansion and imposes substantial costs on the congregation. Hector claims the ordinance substantially burdens religious exercise. The court applies heightened scrutiny under the governing statute and finds the regulation invalid because the government cannot show the burden is the least restrictive means of advancing a compelling interest.
City of Boerne v. Flores521 U.S. 507 (1997)
St. Peter Catholic Church was built in 1923 in Boerne, Texas. Its structure replicates the mission style of the region's earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses.
To meet the needs of the congregation, the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.
A few months later, the Boerne City Council passed an ordinance authorizing the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district.
Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district which they argued included the church, denied the application.
The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas. The complaint contained multiple claims, but to this point the litigation has centered on RFRA and the question of its constitutionality. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under section 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal and the Fifth Circuit reversed, finding RFRA to be constitutional. The Supreme Court granted certiorari and now reverses.
Congress enacted RFRA in direct response to the Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith. RFRA prohibits government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability. Unless the government can demonstrate that the burden is in furtherance of a compelling governmental interest, it must also show that the burden is the least restrictive means of furthering that interest. The Act applies to all federal and state law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of RFRA.
Hudson Partners, an electric utility, wants to run advertisements promoting energy consumption. A state commission prohibits such promotional advertising to conserve energy. The utility challenges the ban. The court applies heightened scrutiny to the commercial speech restriction and invalidates the total ban because the commission fails to show the prohibition directly advances the asserted interest in a narrowly tailored manner.
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980)
In December 1973, the Public Service Commission ordered electric utilities in New York State to cease all advertising that promoted the use of electricity because the interconnected utility system lacked sufficient fuel stocks for the 1973-1974 winter. The order rested on the Commission's finding that the system did not have sufficient fuel stocks or sources of supply to meet customer demands.
Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp. opposed the ban on First Amendment grounds. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977.
The Policy Statement divided advertising expenses into promotional and institutional categories. It permitted informational advertising designed to encourage shifts of consumption from peak demand times to periods of low electricity demand. The Commission banned promotional advertising because additional electricity would be more expensive to produce and promotional advertising would give misleading signals to the public. Central Hudson challenged the order in state court. The order was upheld through the New York Court of Appeals. The Supreme Court noted probable jurisdiction and reversed.
What distinguishes heightened scrutiny from rational basis review?
Heightened scrutiny requires the government to prove an important or compelling interest and a close fit between means and ends. Rational basis review instead presumes validity if any conceivable legitimate purpose exists.
Which classifications trigger intermediate scrutiny?
Gender classifications trigger intermediate scrutiny. The government must supply an exceedingly persuasive justification showing the classification is substantially related to an important objective.
How does heightened scrutiny apply to content-neutral speech regulations?
Content-neutral speech regulations receive intermediate scrutiny. The government must demonstrate that the regulation advances important interests unrelated to speech suppression and does not burden substantially more speech than necessary.
539 U.S. 558 (2003)
…scrutiny under the doctrine of "substantive due process." Roe and Casey , of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition. (2) Bowers , the Court says, has been subject to "substantial and continuing…