Also known as: heightened review standards · heightened standard of review · heightened scrutiny · intermediate scrutiny
Written by attorneys — see sources below.
A standard of judicial review more demanding than rational basis review. Courts apply it to gender classifications and certain fundamental rights claims. The government must demonstrate that the classification or restriction serves an important objective and bears a substantial relationship to that objective.
Harper Hill and Hugo Hart, a married couple, seek to purchase contraceptives at a local pharmacy. State law prohibits their sale to married persons. The couple sues, arguing the ban invades marital privacy. The court applies the heightened review standard and invalidates the statute because the state offers no important interest substantially advanced by the restriction.
Hana Huang and Harold Hunt jointly own rental properties. A state statute permits only the husband to mortgage or sell the assets. Hana sues after the county recorder rejects a deed she signs alone. The court applies the heightened review standard and strikes down the statute because the gender distinction lacks an exceedingly persuasive justification.
Harmony Retail operates large hotels subject to a city ordinance requiring one dedicated channel for tourism and emergency alerts. The company sues, claiming the mandate burdens its programming choices. The court applies the heightened review standard and upholds the rule because the city advances important interests without burdening substantially more speech than necessary.
Heidi Henderson applies to a state university program open only to male students. The university defends the exclusion as advancing workforce development. The court applies the heightened review standard and invalidates the policy because the justification rests on overbroad generalizations rather than a genuine important objective.
Hunter Hughes owns land targeted for economic redevelopment. The city condemns the parcel under a statute authorizing takings for private development. The court evaluates the public-use justification under applicable constitutional standards.
In 1997, the State of Hawaii had a highly concentrated wholesale oil market due to its small size and isolation over 1,600 miles from the mainland, with only two refineries and six gasoline wholesalers operating in the state. Chevron U.S.A. Inc. was the largest refiner and marketer, controlling 60 percent of the in-state gasoline market and 30 percent of the wholesale market on Oahu. Gasoline was sold at retail through approximately 300 service stations, about half leased by oil companies to independent lessee-dealers. Chevron operated 64 such lessee-dealer stations under arrangements where it leased land, constructed stations, and leased them to dealers while setting wholesale prices and requiring supply contracts. In June 1997, the Hawaii Legislature enacted Act 257, which capped the rent oil companies could charge lessee-dealers at 15 percent of gross profits from gasoline sales plus 15 percent of other product sales, and imposed other restrictions on station ownership. Thirty days after enactment, Chevron filed suit in the United States District Court for the District of Hawaii against the Governor and Attorney General, challenging the rent cap. The parties stipulated that the cap would reduce aggregate rent on 11 of Chevron's stations by about $207,000 per year but allow increases on the remaining 53, potentially raising overall rental income by nearly $1.1 million annually, and that Chevron had not recovered station maintenance costs through rent alone over the past 20 years. The District Court granted summary judgment to Chevron. On appeal, the Ninth Circuit vacated the judgment and remanded the case. After a one-day bench trial featuring competing expert economists, the District Court entered judgment for Chevron. The Ninth Circuit affirmed, and the Supreme Court granted certiorari in 2004.
View caseHelios Energy seeks to advertise energy conservation services. A state commission prohibits promotional advertising by utilities. The court applies the heightened review standard to determine whether the restriction directly advances substantial state interests without suppressing more speech than necessary.
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.
View caseCourts apply the heightened review standard to explicit gender classifications and to certain fundamental rights such as marital privacy. The government must then prove an important objective and a substantial relationship between the classification and that objective. Rational basis applies to most economic and social legislation.
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The government must supply an exceedingly persuasive justification that is genuine rather than hypothesized. It must also show the classification is substantially related to an important governmental objective. Overbroad generalizations about gender roles do not satisfy this burden.
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Heightened review, also called intermediate scrutiny, requires an important interest and substantial relationship. Strict scrutiny demands a compelling interest and narrow tailoring. Gender classifications and content-neutral speech rules typically receive heightened review rather than strict scrutiny.
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Federal alienage classifications generally receive rational basis review rather than heightened review. Congress possesses plenary power over immigration and benefits, so distinctions between citizens and noncitizens need only be rational and not arbitrary.
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…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…