Also known as: strict in theory, fatal in fact · strict scrutiny · fatal in fact
Written by attorneys · grounded in primary & secondary sources — see below
A description of the strict scrutiny standard of review that demands a compelling governmental interest and narrow tailoring. In practice the standard permits some race-conscious measures when supported by a strong evidentiary basis of specific past discrimination.
The City of Hialeah enacts an ordinance that prohibits only the Santeria method of animal sacrifice while allowing other forms of animal killing. Animal-rights groups sue, claiming the ordinance targets religious practice. A court applies strict scrutiny because the law is not neutral or generally applicable. The ordinance fails because the city cannot show it is necessary to achieve a compelling interest in public health.
The City of Richmond adopts a plan requiring prime contractors to subcontract thirty percent of city construction work to minority-owned businesses. Non-minority contractors challenge the plan. A court subjects the racial classification to strict scrutiny and requires a strong evidentiary basis of identified past discrimination in the local construction industry. The plan is invalidated because general societal discrimination is insufficient to justify the set-aside.
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A city policy bars foster agencies from rejecting same-sex couples but permits officials to grant individualized exemptions for other reasons. A religious agency refuses to certify same-sex couples and sues. The court finds the policy is not generally applicable because of the exemption mechanism and therefore applies strict scrutiny. The policy fails because the city cannot demonstrate narrow tailoring to a compelling interest.
A federal statute prohibits registration of trademarks that may disparage persons or institutions. A band seeks to register a mark that some find offensive and sues when registration is denied. The court treats the bar as a viewpoint-based restriction on private speech and applies strict scrutiny. The statute is struck down because the government may not suppress speech based on disapproval of the speaker's viewpoint.
A village denies a rezoning request for low-income housing after hearing comments reflecting racial animus from some residents. The developer sues, alleging the denial was motivated by race. The court examines circumstantial evidence of discriminatory purpose under the Arlington Heights factors and applies strict scrutiny once purpose is established. The denial is invalidated because the village cannot show the action was narrowly tailored to a compelling interest.
A state statute criminalizes the use of contraceptives by married couples and authorizes police to search marital bedrooms for evidence. A married couple and their physician challenge the law. The court recognizes a fundamental right to marital privacy and applies strict scrutiny to the prohibition. The statute is invalidated because the state cannot demonstrate that the ban is necessary to serve a compelling interest.
The phrase describes the demanding theoretical standard of strict scrutiny while recognizing that some race-conscious programs survive when supported by particularized evidence of past discrimination and narrow tailoring. The casebook places the discussion in the affirmative action and public contracting section.
Supporting sources
No. Although the standard is strict in theory, programs that rest on a strong evidentiary record of identified past discrimination and are narrowly tailored can survive. The phrase captures this practical outcome in affirmative action litigation.
Supporting sources
The government must produce a strong basis in evidence of specific past discrimination in the relevant industry or jurisdiction. General societal discrimination is insufficient to justify a set-aside or preference.
A law or policy that permits officials to grant individualized exemptions is not generally applicable. The existence of such discretion triggers strict scrutiny under the Free Exercise Clause.
…law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehr v. Lewin , 74 Haw. 530, 852 P. 2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its…