Also known as:strict standards of review · strict scrutiny
Written by attorneys · grounded in primary & secondary sources — see below
The most demanding standard of judicial review applied to governmental action that burdens a fundamental right or employs a suspect classification such as race. The government must prove that the action is necessary to serve a compelling interest and is narrowly tailored to achieve that interest.
Sources & Authorities
How it applies
Common Examples
5
Religious Ritual Ordinance Challenged
Stephen Shaw belongs to a religious group that performs animal slaughter during ceremonies. A city enacts an ordinance banning the precise method used in those ceremonies while permitting other secular methods of animal handling. Shaw sues, and the court applies the strict standard of review because the ordinance targets religious conduct rather than operating neutrally. The city cannot demonstrate that the ban is necessary to any compelling interest in public health, so the ordinance fails.
Minority Contractor Set-Aside Program
Santiago Sanchez owns a construction firm and bids on a city project that reserves a percentage of contracts for minority-owned businesses. The program rests only on evidence of general societal discrimination rather than specific past discrimination in the local industry. Sanchez challenges the set-aside, and the court applies the strict standard of review. Because the city lacks a strong evidentiary basis tied to identified discrimination, the program cannot survive.
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Cases
Study Supplements
Foster Agency Exemption Policy
Seth Shapiro runs a religious foster agency that declines to certify same-sex couples on faith-based grounds. A city policy bars agencies from rejecting same-sex applicants but allows officials to grant individualized exemptions in other contexts. Shapiro sues when the city enforces the policy against his agency. The court applies the strict standard of review because the discretionary exemption system shows the policy is not generally applicable, and the city cannot satisfy the required showing.
Disparaging Trademark Registration Ban
Stella Shapiro seeks to register a trademark containing a term that some find offensive. A federal statute prohibits registration of marks deemed disparaging. Shapiro sues after the agency rejects the application on viewpoint grounds. The court applies the strict standard of review because the bar regulates private speech based on disapproval of the message, and the government cannot meet the narrow-tailoring requirement.
Violent Video Game Sales Restriction
Sylvia Santos owns a store that sells video games depicting violence. A state law forbids sales or rentals of such games to minors and creates a new category of unprotected speech. Santos challenges the statute after being fined for a sale. The court applies the strict standard of review because the law is content-based, and the state cannot show that the restriction is narrowly tailored to any compelling interest in protecting children.
Common questions
Frequently Asked
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When does a law trigger the strict standard of review under the Free Exercise Clause?+
A law triggers the strict standard of review when it is not neutral or generally applicable and instead targets religious conduct for unfavorable treatment. Selective exemptions or underinclusive rules that burden religion while sparing comparable secular activity require the government to prove a compelling interest and narrow tailoring.
What evidentiary showing must support a race-based affirmative action program under the strict standard of review?+
The program must rest on a strong basis in evidence of specific past discrimination in the relevant industry and jurisdiction. General societal discrimination is insufficient, and the set-aside must be narrowly tailored to remedy the identified discrimination.
How does the strict standard of review differ from rational basis review in equal protection cases?+
The strict standard of review applies to suspect classifications such as race and requires the government to prove necessity and narrow tailoring to a compelling interest. Rational basis review applies to most other classifications and upholds the law if it is rationally related to any legitimate interest.
Does a content-based restriction on speech always receive the strict standard of review?+
Yes. Content-based regulations are subject to the strict standard of review and are presumptively unconstitutional unless the government proves they are necessary to serve a compelling interest and are narrowly drawn.
5 P.3d 815 (Cal. 2000)Family Law
…represented by independent counsel when she entered into the agreement, the voluntariness of the agreement must be subjected to strict scrutiny. Instead, we determine that the circumstance that one of the parties was not represented by independent counsel is only one of several factors that must be considered in determining whether…
Constitutional LawIndividual rights · First Amendment freedomsUBEFoundational