Watch the Constitutional Scrutiny video first:
When the constitutionality of a law is challenged, both state and federal courts will commonly apply one of three levels of judicial scrutiny.
The level of scrutiny that’s applied determines how a court will go about analyzing a law and its effects. It also determines which party — the challenger or the government — has the burden of proof (Links to an external site.).
Although these tests aren’t exactly set in stone, here is the basic framework for the most common levels of scrutiny applied to challenged laws.
This is the highest level of scrutiny (Links to an external site.) applied by courts to government actions or laws.
The U.S. Supreme Court has determined that legislation or government actions which discriminate on the basis of race, national origin, religion, and alienage must pass this level of scrutiny to survive a challenge that the policy violates constitutional equal protection (Links to an external site.).
This high level of scrutiny is also applied whenever a “fundamental right” is being threatened by a law, like the right to marriage (Links to an external site.).
Strict scrutiny requires the government to prove that:
- There is a compelling state interest behind the challenged policy, and
- The law or regulation is narrowly tailored to achieve its result.
The next level of judicial focus on challenged laws is less demanding than strict scrutiny. In order for a law to pass intermediate scrutiny, it must:
- Serve an important government objective, and
- Be substantially related to achieving the objective.
This test was first accepted by the U.S. Supreme Court in 1976 (Links to an external site.) to be used whenever a law discriminates based on gender or sex. Some federal appellate courts and state supreme courts have also applied this level of scrutiny to cases involving sexual orientation (Links to an external site.).
As with strict scrutiny, intermediate scrutiny also places the burden of proof on the government.
Rational Basis Review
This is the lowest level of scrutiny applied to challenged laws, and it has historically required very little for a law to pass as constitutional.
Under the rational basis test (Links to an external site.), the person challenging the law (not the government) must prove either:
- The government has no legitimate interest in the law or policy; or
- There is no reasonable, rational link between that interest and the challenged law.
Courts using this test are highly deferential to the government and will often deem a law to have a rational basis as long as that law had any conceivable, rational basis — even if the government never provided one (Links to an external site.). This test typically applies to all laws or regulations which are challenged as irrational or arbitrary as well as discrimination based on age, disability, wealth, or felony status.
When looking at a case where a law is being challenged, we must first decide what level of scrutiny is used. If it’s based on race, the highest and most strict level of scrutiny is used. That means that there better be a DARN GOOD reason the government passed the law. If the distinction in the law is based on age, the scrutiny is much less. For instance, people under 21 can’t drink, under 16 can’t drive, and under 18 can’t vote. That means young people are treated differently than older people. If a person under 21 wants to challenge the drinking laws, the government only has to show, according to the rational basis test, that the government has some rational reason for the law. That’s a much easier test than strict or immediate, where the government must how that an important government objective is being met and in strict, that there is no other way of meeting that objective. The government has an interest in protecting young people from alcohol, and protecting the public from young kids driving cars. But the government would have no rational reason for only letting whites or men drive, and not minorities and women.
How let’s turn to the “You Decide 2.2) on page 25. Read the factual situation and answer the following questions:
1. What level of scrutiny should the court use and why?
2. How would you decide the case? Why? This is not asking you whether you would find the defendant guilty (she is clearly guilty of breaking the law) or how you would punish her. It’s asking whether you would uphold the law as constitutional or not.