Strict scrutiny is triggered when government action (laws, regulations, or policies) infringes upon a fundamental right or utilizes a "suspect classification". To survive this highest standard of judicial review, the government must prove the action is narrowly tailored to achieve a compelling state interest.
To pass the strict scrutiny test, a law must be narrowly tailored to serve a compelling government interest. The same test applies whether the racial classification aims to benefit or harm a racial group. Strict scrutiny also applies whether or not race is the only criteria used to classify.
Typically, laws that regulate speech based on its content (i.e., its subject matter, topic, or viewpoint) receive strict scrutiny, except for regulations of commercial speech (e.g., product advertisements), which typically receive intermediate scrutiny.
Strict scrutiny is a form of judicial review that courts in the United States use to determine the constitutionality of government action that burdens a fundamental right or involves a suspect classification (including race, religion, national origin, and alienage).
One of the most notable cases in which the Supreme Court applied the strict scrutiny standard and found the government's actions constitutional was Korematsu v. United States (1944), since overruled, in which the Court upheld the forced relocation of Japanese Americans in internment camps during World War II.
The test for whether a law passes the strict scrutiny review is whether the law was passed to further a compelling governmental interest and whether the law is narrowly tailored to achieve the interest. In addition, the law must be the least restrictive way to achieve the compelling governmental interest.
Content-based regulations are presumed unconstitutional, and under strict scrutiny the government has the burden of proving that: It has a compelling government interest in regulating the speech. The regulation is narrowly tailored to meet the compelling interest.
There are four generally agreed-upon suspect classifications: race, religion, national origin, and alienage. However, this is not an exhaustive list. In footnote 4 of United States v.
Then the choice between the three levels of scrutiny, strict scrutiny, intermediate scrutiny, or rational basis scrutiny, is the doctrinal way of capturing the individual interest and perniciousness of the kind of government action.
In Richmond v. Croson, 488 U.S. 469 (1989), the Supreme Court held that strict scrutiny applies to state statutes which set standards for affirmative action.
To survive strict scrutiny, the government bears the heavy burden of showing a compelling interest in drawing a suspect classification or infringing on a fundamental right and narrowly tailored means to achieve that interest.
Speech not protected by the First Amendment generally falls into categories like incitement to imminent lawless action, true threats, obscenity, defamation (libel/slander), fighting words, fraud, child pornography, and speech integral to criminal conduct, though the lines can be narrow and context-dependent, with the bar for unprotected speech being very high. These exceptions don't apply to lies in general, which are usually protected, but do cover specific harmful falsehoods like fraud and defamation.
The First Amendment provides the greatest degree of protection to political speech, disallows discrimination against speech based on viewpoint, and generally prohibits the passage of vague or broad laws that impact speech.
If the governmental action infringes upon a fundamental right, the highest level of review, strict scrutiny, is used. To pass strict scrutiny, the law or the act must be both narrowly tailored and the least restrictive means of furthering a compelling government interest.
Heightened scrutiny is a legal standard used by courts to evaluate the constitutionality of laws or government actions that classify individuals based on certain characteristics, such as gender or legitimacy.
Under strict scrutiny, the government must demonstrate that its action serves a compelling interest and that the means used to achieve this interest are narrowly tailored.
Finally, there is a middle tier of review, intermediate scrutiny, where the government action must be substantially related to an important government objective. Intermediate scrutiny has typically been applied in cases where someone has been discriminated against because of their sex or gender.
The law that is most likely to pass the strict scrutiny test is a law that prevents people of specific background from moving into public housing.
Discrimination based on race or ethnicity is subject to strict scrutiny. The government must show that such a law is narrowly tailored to serve a compelling state interest. Gender discrimination is subject to an intermediate level of scrutiny, which is less stringent than strict scrutiny.
Strict scrutiny is usually triggered when a government action involves a “suspect classification,” such as race, religion, national origin, or alienage (lack of citizenship).
Suspect class
The Supreme Court recognizes race, national origin, and religion as suspect classes; it therefore analyzes any government action that discriminates against these classes under strict scrutiny.
In civil cases, the plaintiff has the burden of proving their case by a preponderance of the evidence, which means the plaintiff merely needs to show that the fact in dispute is more likely than not.
Both the intermediate scrutiny test and the strict scrutiny test are considered more stringent than the rational basis test. The rational basis test is generally used in cases where no fundamental rights or suspect classifications are at issue.
In general, discriminatory laws need only be rationally related to a legitimate state interest to pass muster, however, certain classes of individuals are granted the much greater protection of strict scrutiny. Sex is one of those classes which are afforded strict scrutiny.