Also known as:intermediate standards · intermediate scrutiny · intermediate standard of review
Written by attorneys — see sources below.
A standard of judicial review positioned between strict scrutiny and rational basis review. It requires the government to demonstrate that a challenged classification serves an important governmental objective and that the classification is substantially related to achieving that objective.
See Our Sources
How its tested
Common Examples
6
Husband's Unilateral Property Sale
Ivan Ivanov and his wife jointly own farmland. A state statute designates the husband as head of household and permits him alone to pledge the assets for a loan. Ivan executes the pledge without his wife's consent. She sues, claiming the statute violates equal protection. The court applies intermediate scrutiny and invalidates the statute because the gender classification lacks an exceedingly persuasive justification substantially related to an important interest.
Must-Carry Cable Regulation
Integrity Partners operates a cable system. A federal rule requires carriage of local broadcast stations on its channels, displacing some of its preferred programming. The company challenges the rule as compelled speech. The court applies intermediate scrutiny and upholds the regulation after finding that it advances important interests in preserving broadcast access and does not burden substantially more speech than necessary.
Idris Ives applies to a state-supported military college that admits only men. The state defends the policy as preserving educational diversity. Ives sues under the Equal Protection Clause. The court applies intermediate scrutiny and strikes down the policy because the state fails to provide an exceedingly persuasive justification showing the gender classification is substantially related to an important objective.
Paternity Suit Limitations Period
Ismael Ibrahim seeks support for his nonmarital child six years after birth. State law imposes a six-year limit on such actions but allows marital children to seek support indefinitely. Ibrahim challenges the limit. The court applies intermediate scrutiny and invalidates the statute because the classification based on legitimacy is not substantially related to the state's interest in preventing stale claims.
Gender Drinking Age Distinction
State law sets a higher minimum drinking age for men than for women. A male plaintiff challenges the statute on equal protection grounds. The court applies intermediate scrutiny and invalidates the classification because it does not serve an important governmental objective via a substantial relationship.
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.
A state statute criminalizes statutory rape for males but not females. A male defendant challenges the law under equal protection. The court applies intermediate scrutiny and upholds the statute because the gender classification is substantially related to the important interest in preventing teenage pregnancy.
City of Cleburne, Texas, et al. v. Cleburne Living Center, Inc., et al.473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)
In July 1980, respondent Jan Hannah purchased a building at 201 Featherston Street in Cleburne, Texas.
Hannah intended to lease the property to Cleburne Living Center, Inc. (CLC) for use as a group home.
The home would house thirteen mentally retarded men and women under constant staff supervision.
The building contained four bedrooms and two baths, and CLC planned to add a half bath while complying with all applicable state and federal regulations for an Intermediate Care Facility for the Mentally Retarded.
The site lay in an R-3 Apartment House District.
The city's zoning ordinance permitted apartment houses, boarding houses, hospitals, and nursing homes in that district without special permission.
However, the ordinance required a special use permit, renewable annually after a public hearing, for hospitals for the insane or feeble-minded.
The city classified the proposed group home as a hospital for the feeble-minded and informed CLC that a permit was required.
After a public hearing, the City Council voted three to one to deny the application.
CLC and its prospective residents filed suit in federal district court against the city and its officials.
They alleged that the ordinance and its application discriminated against the mentally retarded in violation of the Equal Protection Clause.
The district court upheld the ordinance and the denial.
It found that the council's decision was motivated by the residents' mental retardation yet rationally related to legitimate interests such as neighborhood safety and property values.
The Court of Appeals for the Fifth Circuit reversed, holding that mental retardation is a quasi-suspect class and that the ordinance was invalid both facially and as applied.
The Supreme Court granted certiorari to review the equal protection issues raised by the zoning ordinance and its application to the proposed group home.
When does a court apply intermediate scrutiny instead of strict scrutiny or rational basis?
Courts apply intermediate scrutiny to quasi-suspect classifications such as gender and illegitimacy. The government must show an important objective and a substantial relationship between the classification and that objective.
Supporting sources
What must the government prove under intermediate scrutiny for a gender classification?
The government bears the burden of providing an exceedingly persuasive justification. The justification must be genuine and the classification must be substantially related to an important governmental objective without relying on overbroad stereotypes.
Supporting sources
Does intermediate scrutiny apply to content-neutral speech regulations?
Yes. Content-neutral rules such as must-carry requirements are reviewed under 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.
Supporting sources
How does the intermediate standard of proof differ from the scrutiny standard?
The intermediate standard of proof requires clear and convincing evidence in certain civil proceedings involving important individual interests. It is distinct from the intermediate scrutiny applied to classifications under equal protection.
Supporting sources
521 U.S. 507 (1997)
…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…