Heightened scrutiny
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Intermediate scrutiny, in
U.S. constitutional law The constitutional law of the United States is the body of law governing the interpretation and implementation of the United States Constitution. The subject concerns the scope of power of the United States federal government compared to the ind ...
, is the second level of deciding issues using
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
. The other levels are typically referred to as rational basis review (least rigorous) and
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
(most rigorous). In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an ''important'' government interest by means that are substantially related to that interest. Intermediate scrutiny may be contrasted with "
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
", the higher standard of review that requires narrowly tailored and least restrictive means to further a ''compelling'' governmental interest, and " rational basis review", a lower standard of review that requires the law or policy be rationally related to a ''legitimate'' government interest. This approach is most often employed in reviewing limits on commercial speech, content-neutral regulations of speech, and state actions discriminating on the basis of sex.


Laws subject to Equal Protection scrutiny

Constitutional Equal Protection analysis applies not only to challenges against the
federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...
, but also to state and
local government Local government is a generic term for the lowest tiers of public administration within a particular sovereign state. This particular usage of the word government refers specifically to a level of administration that is both geographically-loca ...
s. Although the Fourteenth Amendment's
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
applies only to state and local governments, the United States Supreme Court has implied an Equal Protection limitation on the federal government through a process known as "
reverse incorporation In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the ...
". As the Fourteenth Amendment applies directly to the states, the incorporation process was unnecessary to hold this restriction against state and local governments. Equal Protection analysis also applies to both
legislative A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known as p ...
and
executive Executive ( exe., exec., execu.) may refer to: Role or title * Executive, a senior management role in an organization ** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators ** Executive dire ...
action regardless if the action is of a
substantive A noun () is a word that generally functions as the name of a specific object or set of objects, such as living creatures, places, actions, qualities, states of existence, or ideas.Example nouns for: * Living creatures (including people, alive, d ...
or procedural nature. Judicially crafted (
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
) rules are also valid only if they conform to the requirements of Equal Protection. See, e.g., '' Reed v. Campbell'', 476 U.S. 852 (1986).


Sex-based classifications

In the context of sex-based classifications, intermediate scrutiny applies to constitutional challenges of equal protection and
discrimination Discrimination is the act of making unjustified distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong. People may be discriminated on the basis of race, gender, age, relig ...
. An example of a court using intermediate scrutiny came in ''
Craig v. Boren ''Craig v. Boren'', 429 U.S. 190 (1976), was a List of landmark court decisions in the United States, landmark decision of the US Supreme Court ruling that statutory or administrative sex classifications were subject to intermediate scrutiny under ...
'', 429 U.S. 190 (1976), which was the first case in the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
which determined that statutory or administrative sex-based classifications were subject to an intermediate standard of
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
. In ''
Mississippi University for Women v. Hogan ''Mississippi University for Women v. Hogan'', 458 U.S. 718 (1982), was a landmark decision of the Supreme Court of the United States, decided 5–4, which ruled that the single-sex admissions policy of the Mississippi University for Women viol ...
'' in 1982, the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
ruled that the burden is on the proponent of the discrimination to establish an "exceedingly persuasive justification" for sex-based classification to be valid. As such, the court applied intermediate scrutiny in a way that is closer to
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
and in recent decisions the Court has preferred the term "exacting scrutiny" when referring to the intermediate level of Equal Protection analysis. For example the court applied similar exacting intermediate scrutiny when ruling on sex-based classifications in both ''
J.E.B. v. Alabama ''J. E. B. v. Alabama ex rel. T. B.'', 511 U.S. 127 (1994), was a landmark decision of the Supreme Court of the United States holding that peremptory challenges based solely on a prospective juror's sex are unconstitutional. ''J.E.B.'' extended th ...
'' (concerning specific strikes against male jurors during jury composition) and ''
United States v. Virginia ''United States v. Virginia'', 518 U.S. 515 (1996), is a landmark case in which the Supreme Court of the United States struck down the long-standing male-only admission policy of the Virginia Military Institute (VMI) in a 7–1 decision. Justice ...
'' (concerning male-only admission to the Virginia Military Institute). In '' Glenn v. Brumby'', the United States Court of Appeals for the Eleventh Circuit held that firing based on
transgender A transgender (often abbreviated as trans) person is someone whose gender identity or gender expression does not correspond with their sex assigned at birth. Many transgender people experience dysphoria, which they seek to alleviate through tr ...
status was a form of sex discrimination, and therefore subject to intermediate scrutiny.


Illegitimacy

Restrictions based on illegitimacy are also subjected to intermediate scrutiny in the Equal Protection context. The courts have found such scrutiny necessary for a number of reasons. Rationally, imposing legal burdens on an illegitimate person in order to express disapproval of the conduct of her parents is illogical, unjust, and contrary to the fundamental principle that legal burdens should have some relationship to individual wrongdoing. Like race or gender, the court has stressed that an illegitimate person's status of birth is a condition over which she has no control, and it has no bearing on her ability or willingness to contribute to society. In applying increasingly exacting intermediate scrutiny, the courts have noted that illegitimate persons are a stigmatized minority, are vastly outnumbered politically, and are the target of long-standing and continuing invidious legal discrimination. For all these reasons, exacting constitutional scrutiny is mandated under the Equal Protection clause of the Fourteenth Amendment. An additional ground for heightening scrutiny of illegitimacy-based discriminatory statutes occurs whenever such statutes involve sex discrimination (as they commonly do). Following a sweep of legislative changes in almost every state in the early nineteenth century all non-marital children were legitimated as to their mothers. Each such child remained illegitimate as to her male parent, only. This gender-based classification disadvantaged male parents and privileged female parents in their fundamental familial relationship to their child. Such gender discrimination was held an additional grounds for intermediate scrutiny of statutory denial of the father-child relationship in cases such as '' Caban v. Mohammed'', 441 U.S. 380 (1979).


Sexual orientation

Courts have been reluctant to apply intermediate scrutiny to cases centered around sexual orientation. For instance, in '' Romer v. Evans'' 517 US 620 (1996), which struck down an amendment to the
Colorado Constitution The Constitution of the State of Colorado is the foundation of the laws and government of the U.S. state of Colorado. The current, and only, Colorado State Constitution was drafted on March 14, 1876; approved by Colorado voters on July 1, 1876 ...
that invalidated legal protections based on sexual orientation, the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
held that the amendment violated the Equal Protection Clause because the amendment was motivated by a bare desire to harm a politically unpopular group, which is never a legitimate governmental interest. In ''
Lawrence v. Texas ''Lawrence v. Texas'', 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that most sanctions of criminal punishment for consensual, adult non- procreative sexual activity (commonly referred to as so ...
'', 539 U.S. 558 (2003), the U.S. Supreme Court struck down anti-sodomy laws as unconstitutional, explicitly overturning its earlier ''
Bowers v. Hardwick ''Bowers v. Hardwick'', 478 U.S. 186 (1986), was a landmark decision of the U.S. Supreme Court that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults ...
'', 478 U.S. 186 (1986) decision, but did not specify the level of scrutiny it applied. In '' Lofton v. Secretary of the Department of Children & Family Services'', 358 F.3d 804 (11th Cir. 2004), the United States Court of Appeals for the Eleventh Circuit explicitly held that ''Lawrence'' did not apply strict scrutiny. However, in 2008, the California Supreme Court adopted the
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
standard for state laws that discriminate on the basis of sexual orientation in the case '' In re Marriage Cases''. On October 18, 2012, the Second Circuit Court of Appeals became the first federal appeals court, in ''
Windsor v. United States ''United States v. Windsor'', 570 U.S. 744 (2013), is a landmark United States Supreme Court civil rights case concerning same-sex marriage. The Court held that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition o ...
'', to hold that laws that classify people based on
sexual orientation Sexual orientation is an enduring pattern of romantic or sexual attraction (or a combination of these) to persons of the opposite sex or gender, the same sex or gender, or to both sexes or more than one gender. These attractions are generall ...
should be subject to intermediate scrutiny. The decision of the Second Circuit was later affirmed by the Supreme Court on June 26, 2013, but the United States Supreme Court did not specifically state the level of scrutiny it applied. On January 21, 2014, the Ninth Circuit Court of Appeals ruled in ''SmithKline Beecham Corp. v. Abbott Laboratories'' that "classifications based on sexual orientation are subject to heightened scrutiny", making it the second appellate court to do so.


Free speech

There are two types of laws affecting "free speech" among United States citizens: content-based and content-neutral. In the free speech context, intermediate scrutiny is the test or standard of review that courts apply when analyzing content-neutral speech versus content-based speech. Content-based speech is reviewed under strict scrutiny in which courts evaluate the value of the subject matter or the content of the communication. Content-neutral laws are evaluated by the nature and scope of the speech regarding the time, place and manner of communication. Content-neutral speech is reviewed under intermediate scrutiny versus strict scrutiny because this speech is only restricted by the way in which the information is communicated; not the information itself. In 1968, ''
United States v. O'Brien ''United States v. O'Brien'', 391 U.S. 367 (1968), was a landmark decision of the United States Supreme Court, ruling that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech. Thoug ...
'' established a four-factor test to determine whether restricting content-neutral speech is constitutional: (1) Is restriction within the constitutional power of government? (2) Does restriction further important or substantial governmental interest? (3) Is the governmental interest unrelated to the suppression of free expression? (4) Is the restriction narrowly tailored – no greater than necessary? Later, a fifth factor was added in '' Ladue v. Gilleo'', 512 U.S. 43 (1994): (5) whether the restriction leaves open ample opportunities of communication. When deciding if a restriction is narrowly tailored, courts consider the setting of the communication. Setting has two divisions: public forum and non- public forum. In a public forum people have a right to express themselves however, not in a non-public forum. ''
Adderley v. Florida ''Adderley v. Florida'', 385 U.S. 39 (1966), was a United States Supreme Court case regarding whether arrests for protesting in front of a jail were constitutional. Background information In 1966, a group of students from Florida A&M University ...
'', 385 U.S. 39 (1966) held that freedom of speech may be limited in a jailhouse because a jailhouse is not a public forum therefore speech is subject to restriction. The court in Adderley v. Florida used the rational basis test standard of review even though the law was content neutral because a jailhouse is a non-public forum. '' Ward v. Rock Against Racism'', 491 U.S. 781 (1989) held that a city's restriction on loud music volume controlled by equipment and technicians is constitutional because it is narrowly tailored. ''
Madsen v. Women's Health Center ''Madsen v. Women's Health Center, Inc.'', 512 U.S. 753 (1994), is a United States Supreme Court case where Petitioners challenged the constitutionality of an injunction entered by a Florida state court which prohibits antiabortion protesters from ...
'', 512 U.S. 753 (1994) upheld part of an injunction restricting abortion protesters from entering the "buffer zone" around the abortion clinic because this was the least restrictive means and still gave protestors ample opportunity to communicate outside the buffer zone on the sidewalk, which was a public forum. The court used the
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
standard of review in ''Madsen''. Intermediate scrutiny applies to regulation that does not directly target speech but has a substantial impact on a particular message. It applies to
time, place, and manner In the United States, freedom of speech, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the United States Constitution, many state constitutions, and state and federal laws. Freedom ...
restrictions on speech, for example, with the additional requirement of "adequate alternative channels of communication." In other words, if restricting the time, place, or manner of speech means that speech cannot take place at all, the regulation fails intermediate scrutiny. It has been used in "erogenous zoning" cases such as ''
Renton v. Playtime Theatres, Inc. ''Renton v. Playtime Theatres, Inc.'', 475 U.S. 41 (1986), was a case in which the Supreme Court of the United States held that localities may impose regulations prohibiting adult theaters from operating within certain areas, finding that the regu ...
'', 475 U.S. 41 (1986), that limit the concentration or require concentration of certain types of establishments. It has also been used for other types of content-neutral regulation, as well as for content-neutral speech compulsion. Intermediate scrutiny also applies to regulation of commercial speech, as long as the state interests in regulating relate to fair bargaining. Regulations for other reasons, such as protection of children, are subject to strict scrutiny.


Gun control

Various federal and state laws restricting access to guns by certain people, laws that restrict or ban the acquisition or ownership of certain types of firearms by the general population, and laws that restrict the carrying of firearms by private citizens in public places have largely been upheld on the basis of intermediate scrutiny. In many of these cases, such laws have survived intermediate scrutiny on the basis that the government is furthering an "important interest in public safety" in enacting laws that constrain the individual
right to keep and bear arms The right to keep and bear arms (often referred to as the right to bear arms) is a right for people to possess weapons (arms) for the preservation of life, liberty, and property. The purpose of gun rights is for self-defense, including securi ...
under the
Second Amendment of the United States Constitution The Second Amendment (Amendment II) to the United States Constitution protects the right to keep and bear arms. It was ratified on December 15, 1791, along with nine other articles of the Bill of Rights. In ''District of Columbia v. Heller ...
. The
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
in its 2008 ''District of Columbia v. Heller'' decision confirmed that the right to "keep and bear arms" is an individual right, but also caveated that the Second Amendment is not necessarily "a right to keep and carry any weapon whatsoever in any manner." However, outright bans on acquiring, possessing and carrying any and all types of firearms in
Illinois Illinois ( ) is a U.S. state, state in the Midwestern United States, Midwestern United States. Its largest metropolitan areas include the Chicago metropolitan area, and the Metro East section, of Greater St. Louis. Other smaller metropolita ...
, the
District of Columbia ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
and in various cities and counties (notably
Chicago (''City in a Garden''); I Will , image_map = , map_caption = Interactive Map of Chicago , coordinates = , coordinates_footnotes = , subdivision_type = Country , subdivision_name ...
and
San Francisco San Francisco (; Spanish language, Spanish for "Francis of Assisi, Saint Francis"), officially the City and County of San Francisco, is the commercial, financial, and cultural center of Northern California. The city proper is the List of Ca ...
) have been struck down, failing to survive intermediate scrutiny where the courts determined that the government overreached in furthering its interest in public safety by completely banning private citizens from obtaining or possessing firearms or carrying firearms in public.


"Intermediate" versus "heightened"

The phrase "heightened scrutiny" has been used interchangeably with "intermediate scrutiny" but it is unclear if the two are actually legally interchangeable. In ''
Witt v. Department of the Air Force ''Witt v. Department of the Air Force'', 527 F.3d 806 (9th Cir. 2008) is a federal lawsuit that challenged the constitutionality of , the law, since repealed, that excluded openly homosexual people from serving in the United States military, common ...
'', 527 F.3d 806 (9th Cir. 2008), the
United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
ruled that the law commonly known as "don't ask, don't tell" (DADT) was subject to "heightened" scrutiny based on its analysis of ''Lawrence''. The court articulated a three-pronged test for heightened scrutiny. To pass, the law "must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest". This differs from the "substantially related to important governmental interests" two-prong test for "intermediate" scrutiny. As the
Obama administration Barack Obama's tenure as the 44th president of the United States began with his first inauguration on January 20, 2009, and ended on January 20, 2017. A Democrat from Illinois, Obama took office following a decisive victory over Republican ...
chose not to appeal ''Witt'' to the Supreme Court, it is binding precedent on the Ninth Circuit and it has been cited as such in ''
Log Cabin Republicans v. United States ''Log Cabin Republicans v. United States'', 658 F.3d 1162 (9th Cir. 2011) was a federal lawsuit challenging the constitutionality of 10 U.S.C. § 654, commonly known as don't ask, don't tell (DADT), which, prior to its repeal, excluded homosexual ...
'' (''LCR''), another case challenging the constitutionality of DADT. The District court in ''LCR'' applied the three-pronged test in ruling DADT unconstitutional. The administration appealed this decision to the Ninth Circuit. In December 2010 DADT was legislatively repealed. On September 29, 2011, the Ninth Circuit vacated the district court's decision, ruling that the legislative repeal of "don't ask, don't tell" rendered the case moot. The Obama administration, in its refusal to defend several lawsuits challenging Section 3 of the Defense of Marriage Act, argued that "heightened" scrutiny is the appropriate level of scrutiny to apply to statutes that discriminate on the basis of sexual orientation.


See also

* ''
Craig v. Boren ''Craig v. Boren'', 429 U.S. 190 (1976), was a List of landmark court decisions in the United States, landmark decision of the US Supreme Court ruling that statutory or administrative sex classifications were subject to intermediate scrutiny under ...
'' * ''
Renton v. Playtime Theatres, Inc. ''Renton v. Playtime Theatres, Inc.'', 475 U.S. 41 (1986), was a case in which the Supreme Court of the United States held that localities may impose regulations prohibiting adult theaters from operating within certain areas, finding that the regu ...
'' * ''
Mississippi University for Women v. Hogan ''Mississippi University for Women v. Hogan'', 458 U.S. 718 (1982), was a landmark decision of the Supreme Court of the United States, decided 5–4, which ruled that the single-sex admissions policy of the Mississippi University for Women viol ...
'' * ''
District of Columbia v. Heller ''District of Columbia v. Heller'', 554 U.S. 570 (2008), is a landmark decision of the U.S. Supreme Court ruling that the Second Amendment to the U.S. Constitution protects an individual's right to keep and bear arms, unconnected with service i ...
''


References

{{DEFAULTSORT:Intermediate Scrutiny Civil rights and liberties Legal history of the United States United States constitutional law