Also known as:middle levels of review · intermediate scrutiny · intermediate review
Written by attorneys · grounded in primary & secondary sources — see 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.
Sources & Authorities
How it applies
Common Examples
6
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.
Select any source to read its text and confirm it supports the definition.
Cases
Course Outlines
Single-Sex Admissions Policy
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
Handgun Carry Restriction
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)
Common questions
Frequently Asked
4
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.
Supporting sources
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.
Supporting sources
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.
Supporting sources
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.
Supporting sources
521 U.S. 507 (1997)Property
…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…