Also known as: strict in theory but fatal in fact · strict scrutiny · fatal in fact doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A description of the strict scrutiny standard of review under which a challenged law is almost always struck down because the government cannot satisfy the demanding requirements of showing a compelling interest and narrow tailoring.
A city enacts an ordinance that singles out the animal sacrifice practices of a religious group while permitting other forms of animal killing. The group sues claiming a free exercise violation. The court applies strict scrutiny because the law targets religious conduct and is not neutral. The ordinance fails because the city cannot prove it is necessary to any compelling interest beyond suppressing the practice.
A city creates a program reserving a percentage of public contracts for minority-owned businesses based only on general assertions of past societal discrimination. A non-minority contractor challenges the program. The court subjects the racial classification to strict scrutiny. The program fails because the city lacks a strong basis in evidence of specific past discrimination in the local industry and the set-aside is not narrowly tailored.
Select any source to read its text and confirm it supports the definition.
A city policy bars foster agencies from declining to certify same-sex couples but allows officials to grant individualized exemptions in other cases. A religious agency refuses certification on faith grounds and faces enforcement. The court finds the policy is not generally applicable because of the exemption discretion and applies strict scrutiny. The policy fails because the city cannot show narrow tailoring to a compelling interest.
A federal statute prohibits registration of trademarks that may disparage persons or institutions. An applicant seeks to register a mark that some find offensive and is denied. The court treats the bar as a viewpoint-based restriction on private speech and applies strict scrutiny. The statute fails because the government cannot justify viewpoint suppression under the registration system.
A state enacts a statute restricting the sale or rental of violent video games to minors. A video game maker and retailers challenge the law on First Amendment grounds. The court treats the statute as a content-based regulation of protected speech and applies strict scrutiny. The law fails because it is both underinclusive and overinclusive relative to the state's asserted interest.
A state requires that proceeds from any work describing a crime be escrowed for the benefit of victims. An author who wrote about his own criminal past challenges the statute. The court applies strict scrutiny to the content-based financial burden on speech. The law fails because it is not narrowly tailored to the state's interest in compensating victims.
The phrase signals that once a court decides to apply strict scrutiny the challenged law is almost invariably invalidated because the government rarely can prove both a compelling interest and narrow tailoring.
Supporting sources
No. The phrase describes the outcome of strict scrutiny across multiple constitutional contexts including equal protection racial classifications affirmative action and content-based speech restrictions.
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Survival is theoretically possible but exceedingly rare because the test demands that the law be the least restrictive means of achieving a compelling governmental interest and most laws fail at least one prong.
Supporting sources
…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…