Also known as: intermediate-scrutiny · intermediate scrutiny test · intermediate standard of review
Written by attorneys — see sources below.
A standard of judicial review lying between rational-basis review and strict scrutiny. The government must show that a quasi-suspect classification is substantially related to an important governmental objective and must supply an exceedingly persuasive justification that is genuine rather than hypothesized.
Isaiah Ishikawa and Isabella Ingram jointly own farmland and equipment. A state statute designates the husband as head of household and permits him alone to pledge or sell the assets. Isabella sues after Isaiah encumbers the property without her consent. The court applies intermediate scrutiny to the gender classification and invalidates the statute because the state offers no exceedingly persuasive justification tying the rule to an important objective.
Indigo Textiles operates a cable system. A federal order requires carriage of local broadcast stations and displaces fifteen percent of the operator's own programming space. Indigo sues claiming a First Amendment violation. The court subjects the content-neutral rule to intermediate scrutiny, finds that it advances important interests in preserving free television without burdening substantially more speech than necessary, and upholds the order.
Ian Iverson applies to a state-supported military college that admits only men. The institution defends the policy as preserving tradition and producing citizen-soldiers. Ian sues under the Equal Protection Clause. The court subjects the gender classification to intermediate scrutiny, requires an exceedingly persuasive justification, rejects reliance on overbroad stereotypes, and orders the school to admit qualified women.
Ira Irving seeks support for his nonmarital child six years after birth. A state statute bars such actions after six years while allowing marital children to sue at any time. Ira challenges the limitation. The court applies intermediate scrutiny to the illegitimacy classification, finds no substantial relationship to preventing stale claims, and strikes down the shorter period.
Inertia Dynamics, an electric utility, wishes to promote energy-efficient appliances. A state commission prohibits all promotional advertising by utilities. The company sues. The court applies intermediate scrutiny to the commercial-speech restriction, requires the state to show a substantial interest and narrow tailoring, and invalidates the total ban because less restrictive alternatives exist.
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 caseInnovate Pharmaceuticals bids on a federal construction contract. A statute awards bonus points only to firms owned by members of designated racial minorities. The company sues after losing the award. The court rejects intermediate scrutiny for racial classifications and requires strict scrutiny instead, holding that all race-based government action must satisfy the higher standard.
Adarand Constructors, Inc., a Colorado-based firm specializing in guardrail work, submitted the low bid for a subcontract on a federal highway construction project. Despite submitting the lowest bid, Adarand lost the subcontract to another firm that had been certified as a small business controlled by socially and economically disadvantaged individuals. The prime contractor received a financial incentive from the federal government for awarding the subcontract to the certified firm. This incident prompted Adarand to challenge the government's practice of providing such incentives based on race-based presumptions. The federal subcontracting program derives from the Small Business Act and the Surface Transportation and Uniform Relocation Assistance Act of 1987. The Small Business Administration administers programs that presume members of specified racial groups are socially disadvantaged, though the presumption is rebuttable and allows for individualized showings of disadvantage. Department of Transportation regulations require federal agencies to set goals for participation by disadvantaged businesses and establish certification procedures that can be performed by the SBA, state highway agencies, or other acceptable authorities. Prime contractors receive monetary compensation under subcontracting compensation clauses when they use certified disadvantaged business enterprises as subcontractors. Adarand sued federal officials in federal district court, alleging that the race-based presumptions violated the equal protection component of the Fifth Amendment. The district court granted summary judgment for the government. The Tenth Circuit Court of Appeals affirmed the district court's judgment. Adarand then petitioned the Supreme Court for review. Adarand sought declaratory and injunctive relief to prevent future use of the subcontractor compensation clauses in government contracts. To establish standing for this forward-looking relief, Adarand presented evidence that it was very likely to bid on additional government contracts offering similar financial incentives in the near future. The Supreme Court granted certiorari to consider the constitutional challenge.
View caseQuasi-suspect classifications such as gender and illegitimacy trigger intermediate scrutiny. Content-neutral regulations of speech are also reviewed under this standard.
The government bears the burden of showing an exceedingly persuasive justification. The classification must be substantially related to an important governmental objective that is genuine and not hypothesized.
No. All racial classifications, whether benign or burdensome, are subject to strict scrutiny. Earlier cases applying intermediate scrutiny to certain federal racial preferences were overruled.
Strict scrutiny demands that a classification be narrowly tailored to a compelling interest. Intermediate scrutiny requires only a substantial relationship to an important interest and permits somewhat greater deference to the government.
Yes, when the government demonstrates an exceedingly persuasive justification that is substantially related to an important objective and does not rely on overbroad stereotypes. A statute criminalizing statutory rape only for males was upheld on that basis.
…holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say, one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the…