Also known as:middle levels of review · intermediate scrutiny · intermediate review
Written by attorneys — see sources below.
A standard of judicial review requiring that a classification or regulation be substantially related to an important governmental objective. The government bears the burden of proof and must supply an exceedingly persuasive justification that is genuine rather than hypothesized.
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How its tested
Common Examples
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Husband's Unilateral Property Power
Mustafa Mahmoud and Michelle Murphy co-own farmland under a state statute that automatically names the husband head of household and lets him mortgage the land alone. Michelle sues after Mustafa pledges the assets without her consent. The court applies middle level review to the gender classification and strikes the statute down because the state offers no exceedingly persuasive justification showing the rule is substantially related to an important objective.
Must-Carry Cable Mandate
Mirage Hotels operates a cable system. A federal rule requires it to carry local broadcast channels and displaces some of its own programming. Mirage challenges the mandate as compelled speech. The court subjects the content-neutral regulation to middle level review, upholds it after finding the rule advances important interests in broadcast access and does not burden substantially more speech than necessary.
Mohan Malhotra applies to a state military college that admits only men. The school defends the policy as preserving tradition and producing leaders. The court subjects the gender classification to middle level review and invalidates it because the state fails to prove an exceedingly persuasive justification that is substantially related to an important objective without relying on overbroad stereotypes.
Paternity Suit Limitations Period
Megan Moore brings a paternity action on behalf of her nonmarital child six years after birth. A state statute bars such suits after six years while allowing marital children to seek support indefinitely. The court applies middle level review to the illegitimacy classification and strikes the limitation because the state cannot show it is substantially related to preventing stale claims.
Copyright Term Extension Challenge
Millennium Media holds copyrights nearing expiration and challenges a federal law extending terms by twenty years. The company argues the extension burdens speech and should face middle level review. The court declines to apply that standard and instead reviews the law under the Copyright Clause and rational basis, finding no violation.
Eldred v. Ashcroft537 U.S. 186
In 1998 Congress enacted the Copyright Term Extension Act, which extended the duration of all federal copyrights by twenty years. For works created by identified natural persons the new term runs from creation until seventy years after the author's death. For anonymous works, pseudonymous works, and works made for hire the term is ninety-five years from publication or one hundred twenty years from creation, whichever expires first. The statute applied these extended terms both to copyrights already in existence and to works created after its effective date.
Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain. They filed suit in the United States District Court for the District of Columbia seeking a declaration that the extension of existing copyrights exceeded Congress's power under the Copyright Clause and violated the First Amendment. On cross-motions for judgment on the pleadings the district court entered judgment for the Attorney General.
The Court of Appeals for the District of Columbia Circuit affirmed. A majority of the panel upheld the statute against both challenges, while Judge Sentelle dissented in part on the Copyright Clause issue. The Supreme Court granted certiorari to address whether the extension of existing copyrights exceeds Congress's power under the Copyright Clause and whether the extension violates the First Amendment.
Meredith Maxwell seeks to carry a handgun outside the home for self-defense after a local ordinance bans public carry. She argues the restriction should receive middle level review as a content-neutral regulation. The court rejects that framework and instead requires the government to show the rule is consistent with the nation's historical tradition of firearm regulation.
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.
Which classifications receive middle level review?
Gender classifications and classifications based on illegitimacy receive middle level review. The government must prove the classification is substantially related to an important governmental objective and supply an exceedingly persuasive justification.
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How does middle level review apply to speech regulations?
Content-neutral regulations of speech are subject to middle level review. The government must demonstrate that the regulation advances important interests unrelated to the suppression of speech and does not burden substantially more speech than necessary.
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What burden does the government carry under middle level review?
The government bears the burden of proof. It must provide an exceedingly persuasive justification that is genuine and may not rely on overbroad generalizations or hypothesized interests.
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Does middle level review apply to racial classifications?
No. All racial classifications receive strict scrutiny regardless of whether they confer benefits or burdens. Middle level review is reserved for quasi-suspect classifications such as gender.
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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…