InU.S. constitutional law, when a law infringes upon a fundamentalconstitutional right, the court may apply thestrict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
Strict scrutiny is the highest and most stringent standard ofjudicial review in the United States and is part of the levels of judicial scrutiny thatUS courts use to determine whether a constitutional right or principle should give way to the government's interest against observance of the principle. The lesser standards arerational basis review and exacting orintermediate scrutiny. These standards are applied to statutes and government action at all levels of government within the United States.
The notion of "levels of judicial scrutiny", including strict scrutiny, was introduced inFootnote 4 of theU.S. Supreme Court decision inUnited States v. Carolene Products Co. (1938), one of a series of decisions testing the constitutionality ofNew Deal legislation. One of the most notable cases in which theSupreme Court applied the strict scrutiny standard and found the government's actions constitutional wasKorematsu v. United States (1944), since overruled, in which the Court upheldthe forced relocation ofJapanese Americans in internment camps duringWorld War II. Another example is theD.C. Circuit Court's 2007 ruling inAbigail Alliance v. von Eschenbach that compelling government interest was demonstrated in the restriction of unapprovedprescription drugs.[1]
Theburden of proof falls on the state in cases that require strict scrutiny or intermediate scrutiny, but not the rational basis.
U.S. courts apply the strict scrutiny standard in two contexts:
To satisfy the strict scrutiny standard, the law or policy must:
Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact" since popular perception is that most laws subjected to the standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts found that laws survive strict scrutiny more than 30% of the time. In one area of law,religious liberty, laws that burden religious liberty survived strict scrutiny review in nearly 60% of cases. However, a discrepancy was found in the type of religious liberty claim, with most claims for exemption from law failing and no allegedly discriminatory laws surviving.[3] See also the cases cited below, however; several appear to permit the exemption from laws based upon religious liberty.
Harvard law professor Richard Fallon Jr. has written that rather than being neatly applied, under strict scrutiny, "interpretation is more varied than is often recognized",[4] a view that has been acknowledged by U.S.Supreme Court JusticeClarence Thomas (e.g., in his dissent (part III) inHellerstedt).[5]
The compelling state interest test is distinguishable from therational basis test, which involves claims that do not involve a suspect class orfundamental right, but still arise under theEqual Protection Clause orDue Process Clause.
Presumption of constitutionality doesn't apply understrict scrutiny; the burden to prove the constitutionality of a law shifts to the government lawyers.
The Supreme Court has established standards for determining whether a statute or policy must satisfy strict scrutiny. One ruling suggested that the affected class of people must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics", or be a minority or "politically powerless".[6]
The Court has consistently found that classifications based on race, national origin, and alienage require strict scrutiny review. The Supreme Court held that all race-based classifications must be subjected to strict scrutiny inAdarand Constructors v. Peña, 515 U.S. 200 (1995), overrulingMetro Broadcasting, Inc. v. FCC (89-453), 497 U.S. 547 (1990), which had briefly allowed the use of intermediate scrutiny to analyze the Equal Protection implications of race-based classifications in the narrow category of affirmative-action programs established by the federal government in the broadcasting field.
As applied inKorematsu v. United States, which upheld the race-basedexclusion order and internment duringWorld War II ofJapanese Americans who had resided on the West Coast of the United States, strict scrutiny was limited to instances ofde jure discrimination, where a racial classification is written into the language of a statute.
The Supreme Court's decision inVillage of Arlington Heights v. Metropolitan Housing Development Corp. provided further definition to the concept of intent and clarified three particular areas in which intent of a particular administrative or legislative decision becomes apparent, the presence of any of which demands the harsher equal protection test. The Court must use strict scrutiny if one of these tests, among others, is met:
As a historical matter, [close relatives] have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority, or politically powerless.
