Also known as:interest of the highest order · compelling governmental interest
Written by attorneys — see sources below.
A governmental interest sufficiently compelling to justify a burden on fundamental constitutional rights under strict scrutiny. The interest must be of such overriding importance that it can overcome protected liberties only when the government action is also narrowly tailored.
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Cases
How its tested
Common Examples
6
Racial Contracting Set-Aside
Icarus Aviation bids on a federal satellite contract but loses eligibility because it lacks majority ownership by members of designated racial groups. The firm sues, arguing the ownership rule imposes a racial classification. The court applies strict scrutiny and asks whether the government's asserted interest in remedying underrepresentation qualifies as an interest of the highest order that can sustain the burden on equal protection.
Santeria Slaughter Ordinance
Israel Irving opens a small religious center that performs animal sacrifice according to Santeria rites. The city enacts an ordinance banning the precise method of slaughter used in those rites. Irving challenges the law under the Free Exercise Clause. The court holds that the ordinance targets religious conduct and therefore must advance an interest of the highest order that cannot be achieved by less restrictive means.
Withdrawal of Life Support
Ira Irving's daughter lies in a persistent vegetative state after an accident. Her parents seek court permission to discontinue artificial nutrition. The state intervenes to keep her alive, asserting its interest in preserving life. The court must decide whether that asserted interest rises to the level of an interest of the highest order capable of overriding the family's liberty interest in refusing unwanted medical treatment.
Cruzan by Cruzan v. Director, Missouri Dept, of Health497 U.S. 261, 277 (1990)
On the night of January 11, 1983, Nancy Beth Cruzan lost control of her car as she traveled down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was discovered lying face down in a ditch without detectable respiratory or cardiac function. Paramedics were able to restore her breathing and heartbeat at the accident site, and she was transported to a hospital in an unconscious state. An attending neurosurgeon diagnosed her as having sustained probable cerebral contusions compounded by significant anoxia. The Missouri trial court found that permanent brain damage generally results after six minutes in an anoxic state, and it was estimated that Cruzan was deprived of oxygen from twelve to fourteen minutes.
She remained in a coma for approximately three weeks and then progressed to an unconscious state in which she was able to orally ingest some nutrition. Surgeons implanted a gastrostomy feeding and hydration tube in Cruzan with the consent of her then husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a Missouri state hospital in what is commonly referred to as a persistent vegetative state in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. The State of Missouri is bearing the cost of her care.
After it had become apparent that Nancy Cruzan had virtually no chance of regaining her mental faculties, her parents Lester and Joyce Cruzan, who serve as coguardians, asked hospital employees to terminate the artificial nutrition and hydration procedures. All agree that such a removal would cause her death. The employees refused to honor the request without court approval. The parents then sought and received authorization from the state trial court for termination. The trial court found that a person in Nancy's condition had a fundamental right under the State and Federal Constitutions to refuse or direct the withdrawal of death prolonging procedures. The court also found that Nancy's expressed thoughts at age twenty-five in conversation with a housemate friend suggested that given her present condition she would not wish to continue on with her nutrition and hydration.
The Supreme Court of Missouri reversed by a divided vote. The court recognized a right to refuse treatment embodied in the common-law doctrine of informed consent but expressed skepticism about the application of that doctrine in the circumstances of this case. The court found that Cruzan's statements to her roommate regarding her desire to live or die under those conditions were unreliable for determining her intent and thus insufficient to support the coguardians' claim to exercise substituted judgment on Nancy's behalf. It rejected the argument that Cruzan's parents were entitled to order the termination of her medical treatment, concluding that no person can assume that choice for an incompetent in the absence of the formalities required under Missouri's Living Will statutes or the clear and convincing inherently reliable evidence absent here.
The Supreme Court granted certiorari to consider the question whether Cruzan has a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her under these circumstances.
Amish School Attendance
Isaac Irving and his family belong to an Old Order Amish community that ends formal schooling after eighth grade. State officials prosecute the parents for violating compulsory-attendance laws. The family claims the law burdens their free exercise of religion. The court weighs whether the state's interest in universal education constitutes an interest of the highest order that can override the Amish claim.
Wisconsin v. Yoder406 U.S. 205 (1972)
In Green County, Wisconsin, respondents Jonas Yoder and Wallace Miller are members of the Old Order Amish religion, and respondent Adin Yutzy is a member of the Conservative Amish Mennonite Church. They and their families reside in Green County. Wisconsin's compulsory school-attendance law required them to cause their children to attend public or private school until reaching age 16. The respondents declined to send their children, ages 14 and 15, to public school after they completed the eighth grade.
The children involved were Frieda Yoder, aged 15, Barbara Miller, aged 15, and Vernon Yutzy, aged 14. All had graduated from the eighth grade of public school. On complaint of the school district administrator for the public schools, respondents were charged, tried, and convicted in Green County Court of violating the compulsory-attendance law. They were each fined the sum of five dollars.
At trial, respondents defended on the ground that application of the compulsory-attendance law violated their rights under the First and Fourteenth Amendments. The trial testimony showed that respondents believed, in accordance with the tenets of Old Order Amish communities generally, that their children's attendance at high school, public or private, was contrary to the Amish religion and way of life. The State stipulated that respondents' religious beliefs were sincere.
Expert witnesses, including scholars on religion and education such as Dr. John Hostetler and Dr. Donald A. Erickson, testified regarding the relationship of Amish beliefs to school attendance and the impact of compulsory high school attendance on Amish communities. The Wisconsin Circuit Court affirmed the convictions. The Wisconsin Supreme Court reversed the convictions, holding that the compulsory school-attendance law violated respondents' rights under the First and Fourteenth Amendments.
On petition of the State of Wisconsin, the United States Supreme Court granted certiorari to review the decision of the Wisconsin Supreme Court. The record showed that the Amish have a history dating back to the 16th century Swiss Anabaptists and maintain a way of life emphasizing separation from the world, harmony with nature, and informal learning through doing on the family farm. Respondents presented evidence that an additional one or two years of formal high school education would do little to serve the state's interests in preparing citizens for political participation and self-sufficiency. The Amish have functioned effectively as a self-sufficient community for more than 200 years. There was no evidence in the record that any of the children in this case expressed a desire to attend high school against their parents' wishes.
Church Expansion Permit
Integrity Partners applies for a zoning permit to enlarge its church building. The city denies the permit under a generally applicable historic-preservation ordinance. The church sues under the Religious Freedom Restoration Act, claiming a substantial burden on religious exercise. The court examines whether the city's asserted interests in historic preservation rise to an interest of the highest order that is narrowly tailored.
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.
Handgun Possession Ban
Idina Iverson keeps a loaded handgun in her home for self-defense. District law prohibits possession of operable handguns in the home. Iverson challenges the ban as violating the Second Amendment. The court must determine whether the district's asserted interests in public safety and crime prevention qualify as interests of the highest order sufficient to justify the burden on the individual right.
District of Columbia v. Heller554 U.S. 570 (2008)
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for one-year periods.
District of Columbia law also requires residents to keep their lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device unless they are located in a place of business or are being used for lawful recreational activities.
Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of functional firearms within the home.
The District Court dismissed respondent's complaint. The Court of Appeals for the District of Columbia Circuit reversed, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense. The Court of Appeals directed the District Court to enter summary judgment for respondent.
The Supreme Court granted certiorari.
4 common questions
Students Frequently Ask...
What must the government show to prove an interest qualifies as one of the highest order?
The government must demonstrate that the interest is compelling enough to override a fundamental constitutional right and that the means chosen are narrowly tailored. Courts have rejected generalized or abstract assertions and require concrete evidence that the interest cannot be achieved by less restrictive alternatives.
Supporting sources
Does an interest in eradicating racial discrimination always qualify as one of the highest order?
Yes. The Supreme Court has recognized a compelling governmental interest in eliminating racial discrimination in education and contracting, even when the policy burdens religious exercise or equal protection claims. The interest must still be pursued through narrowly tailored means.
Supporting sources
Can a state interest in protecting life override a liberty interest in refusing medical treatment?
The state may assert an interest in preserving life, but that interest is not automatically one of the highest order when balanced against an individual's liberty to refuse unwanted treatment. Courts examine whether the state's policy actually protects life or instead imposes an unwanted definition of life on the individual.
Supporting sources
How does the phrase differ from ordinary compelling interests in strict-scrutiny analysis?
The phrase emphasizes that only the most urgent and overriding governmental objectives can justify burdens on core constitutional liberties. It appears in free-exercise and free-speech cases to signal that routine policy goals fall short and that the government must show the interest is truly paramount and cannot be served another way.
Supporting sources
.” 42 U. S. C. §2000bb–1. RFRA’s purpose was to restore the
compelling
interest
test set forth in Sherbert v.…
. To be constitutionally permissible, Missouri's intrusion upon these fundamental liberties must, at a minimum, bear a reasonable relationship to a legitimate state end. Missouri asserts…
interest
in…
Constitutional LawIndividual rights · Equal protectionUBEIntermediate