Levels of Scrutiny in Equal Protection Analysis

Strict Scrutiny

Is the use of the classification narrowly tailored to the accomplishment of a compelling governmental interest?
Under this standard, the burden is on the government to prove the standard is satisfied. In addition, narrow tailoring means that no less discriminatory classification is available to accomplish the government's compelling objective. For example, in cases of racial classifications, satisfying this part of the test requires the government to at least consider race-neutral alternative means. In older cases, the Supreme Court used to describe the test as requiring that the classification be necessary to the accomplishment of a compelling government interest, but in more recent cases the Court has substituted narrowly tailored for necessary. Despite the change in wording, the test has not gotten any easier to satisfy.

Intermediate Scrutiny

Is the use of the classification substantially related to the accomplishment of an important governmental interest?
Under this standard, the burden is on the government to prove the standard is satisfied. In applying the intermediate scrutiny standard to gender discrimination in United States v. Virginia, Justice Ginsburg stated that the government's important "justification, must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females."



Minimum Scrutiny

Is the use of the classification rationally related to a legitimate governmental interest?
Under this standard, the burden is on the challenger to prove that the standard is not satisfied. That burden can be met by showing either that there is no rational connection between the classification and a legitimate government objective or by showing that the only government interest supporting the law is an illegitimate one such as a "bare . . . desire to harm a politically unpopular group."

How to Tell Which Standard a Court is Using

Most of the time courts will clearly announce the standard they are applying and the reasons for the choice. For example, they will say that the law employs a racial classification and they are applying strict scrutiny or it employs a gender classification and they are applying intermediate scrutiny. However, there are times when courts are less clear about the standard. In those cases, you should first look for any discussion relevant to the selection of a standard even if it doesn't clearly articulate the standard selected because it may include some general references such as saying it is employing a heightened or a rigorous standard which are terms only used in connection with intermediate or strict scrutiny. Next, you should look for any mention of the level of government interest the court concludes the government must satisfy. If the court uses the term compelling interest, that is an indicator it is using strict scrutiny. If the court uses the term important interest (or sometimes substantial interest which is treated as a synonym for important), that is an indicator it is using intermediate scrutiny. If it talks about the government having a rational reason for its action, that suggests it is applying minimum scrutiny. Another clue can be found in any reference to the extent to which the court is closely examining the asserted government interest. Is the court saying that the government has no evidence to support the asserted interest? Is the court making clear that the government has the burden of proof to demonstrate it has a sufficient government interest? Is the court rejecting the government's asserted interest because there is no proof it was the actual reason for the law being challenged? All three of those comments are indications the court is applying something more than minimum scrutiny.

In addition, while courts usually employ one of the three identified levels of scrutiny, there are times when a court will use a hybrid standard, something in between one of the conventional levels of scrutiny. An example of this can be found in Plyler v. Doe where the Supreme Court applies a standard that is between minimum scrutiny and intermediate scrutiny. This can be identified because the Court states that "the discrimination contained in § 21.031 can hardly be considered rational unless it furthers some substantial goal of the State." By combining the terms "rational" and "substantial," the Court is singling it is using a hybrid standard between minimum and intermediate scrutiny. This is further supported by the Court requiring the state have evidence to support its asserted interests.