Also known as: heightened solicitude · heightened scrutiny
Written by attorneys — see sources below.
An equal protection and substantive due process principle directing courts to subject state burdens on fundamental rights such as marital privacy to strict scrutiny. The principle requires narrow tailoring when core liberties are impaired.
Emma and Lucas, a married couple, face a state hospital program requiring procreation workshops before receiving contraceptives. The court applies heightened judicial solicitude to the privacy interest at stake and strikes down the program because it burdens the marital zone of privacy without narrow tailoring.
Hilda Hernandez, a lawful permanent resident, is denied state welfare benefits available to citizens under an Arizona statute. The court invokes heightened judicial solicitude for aliens as a discrete and insular minority and invalidates the classification under strict scrutiny.
Carmen Richardson, a lawfully admitted resident alien who emigrated from Mexico in 1956, was 64 years old when she instituted suit in July 1969 after becoming permanently and totally disabled. She had resided continuously in Arizona but was denied assistance to the permanently and totally disabled under Arizona Revised Statutes section 46-233 solely due to the requirement that aliens reside in the United States for fifteen years. Similar provisions conditioned old-age assistance and aid to the needy blind on citizenship or the same durational residency. Richardson brought a class action in the United States District Court for the District of Arizona against the Commissioner of the Department of Public Welfare seeking declaratory and injunctive relief as well as back payments. The three-judge court upheld Mrs. Richardson's motion for summary judgment on equal protection grounds. The Commissioner appealed. Probable jurisdiction was noted. In the consolidated Pennsylvania case, Elsie Mary Jane Leger, who arrived from Scotland in 1965 and later entered a common-law marriage with a United States citizen, and Beryl Jervis, who arrived from Panama in 1968, both lawfully admitted resident aliens and taxpaying residents, were denied general assistance under Pennsylvania Public Welfare Code section 432(2) because they were not citizens. Both had become ill and unable to work, rendering them ineligible for federal programs, and Leger received a temporary restraining order allowing her to obtain benefits. The Pennsylvania plaintiffs filed class actions in the Eastern District of Pennsylvania against state welfare officials. After a stipulation that denial caused undue hardship and encouraged departure from the state, the three-judge court enjoined enforcement of the citizenship restriction. The defendants appealed, with probable jurisdiction noted, and the cases reached the Supreme Court for review. The Arizona program participated in federal categorical assistance under the Social Security Act, while the Pennsylvania general assistance was state-funded only.
View caseHassan Hakim challenges a federal statute that treats unwed fathers differently from mothers in transmitting citizenship to foreign-born children. The court subjects the gender line to heightened judicial solicitude and finds it incompatible with equal protection requirements.
Jose Morales was born in Puerto Rico in 1900 and acquired U.S. citizenship at birth. After living in Puerto Rico for nearly two decades, he left his childhood home on February 27, 1919, twenty days short of his nineteenth birthday, to take up employment in the Dominican Republic. He never returned to the United States. In 1959, at age nineteen, Jose fathered respondent Luis Ramon Morales-Santana with a Dominican woman to whom he was not married. Jose acknowledged paternity several years after the birth. He married the mother in 1970, after which his name was added to the child's birth certificate. Luis moved to the United States at age thirteen and has resided in this country most of his life. In 2000, following convictions for felonies including attempted murder, he was placed in removal proceedings. He claimed derivative U.S. citizenship through his father, but an immigration judge and the Board of Immigration Appeals rejected the claim because Jose had not satisfied the ten-year physical-presence requirement applicable to unwed citizen fathers. The Court of Appeals for the Second Circuit reversed the Board of Immigration Appeals, holding that the gender-based distinction violated equal protection and that Morales-Santana was entitled to citizenship. The Supreme Court granted certiorari.
View caseHarriet Hamilton, a lawful permanent resident, is barred from becoming a notary public by a state law limiting the role to citizens. The court applies heightened judicial solicitude to the alienage classification and holds that the restriction fails strict scrutiny.
Bernal, a native of Mexico, has lived in the United States as a resident alien since 1961. He works as a paralegal for Texas Rural Legal Aid, Inc., assisting migrant farmworkers on employment and civil rights matters. In 1978 Bernal applied to the Texas Secretary of State to become a notary public. He sought the position so he could administer oaths and notarize statements for use in civil litigation. Bernal had previously held a notary commission in Indiana while working in a legal services program there. The Secretary of State denied the application because Bernal failed to satisfy the citizenship requirement of Texas Revised Civil Statutes Annotated Article 5949(2). After an unsuccessful administrative appeal, Bernal joined as a coplaintiff in a federal district court suit initially filed by Margarita Vargas, who later obtained citizenship and left the case. The district court ruled in favor of the plaintiffs. A divided panel of the Court of Appeals for the Fifth Circuit reversed, and the Supreme Court granted certiorari. Texas notaries public authenticate written instruments, administer oaths, and take out-of-court depositions. The State does not require citizenship for court reporters, who perform some of the same services, or for the Secretary of State, who supervises the licensing of all notaries public.
View caseHyun Han, a resident alien, is excluded from state civil service positions under a statute reserving them for citizens. The court extends heightened judicial solicitude to the classification and concludes that the blanket exclusion violates equal protection.
In 1971 four lawfully admitted resident aliens employed by New York City were discharged from their positions in the competitive class of the civil service solely because they were not United States citizens. The four appellees—Patrick McL. Dougall, Esperanza Jorge, Teresa Vargas, and Sylvia Castro—had previously worked for nonprofit organizations receiving funds from the United States Office of Economic Opportunity. Those organizations were absorbed by the Manpower Career and Development Agency of the city's Human Resources Administration. The appellees were initially continued in employment by the city. They were soon notified that section 53 of the New York Civil Service Law rendered them ineligible, and they were terminated. Dougall was born in Guyana in 1927 and had resided in New York City since 1964; he held the position of administrative assistant in the staff development unit. Jorge was born in the Dominican Republic in 1948 and had resided in New York City since 1967; she worked as a human resources technician. Vargas was born in the Dominican Republic in 1946 and had resided in New York City since 1963; she worked as a clerk-typist. Castro was born in El Salvador in 1944 and had resided in New York City since 1967; she worked as a human resources technician. None of the four had taken any steps toward United States citizenship. The appellees filed a class action in the United States District Court for the Southern District of New York against the Administrator of the Human Resources Administration and the city's Director of Personnel and Chairman of the Civil Service Commission. They sought a declaration that section 53 was invalid, an injunction against refusals to appoint or retain aliens in competitive civil service positions, and damages for lost earnings. A three-judge district court was convened. That court held the statute unconstitutional under the Fourteenth Amendment and the Supremacy Clause and granted injunctive relief. The Supreme Court noted probable jurisdiction on direct appeal.
View caseHeidi Henderson and other plaintiffs contest an executive order restricting entry from certain countries. The court declines to apply heightened judicial solicitude to the nationality-based distinctions and upholds the order under deferential review of executive immigration authority.
Shortly after taking office, President Trump signed Executive Order 13769 directing a review of information provided by foreign governments about their nationals seeking entry and temporarily restricting entry from seven countries previously identified as posing terrorism risks. After courts enjoined that order, the President revoked it and issued Executive Order 13780, which again directed a worldwide review and temporarily restricted entry from six of the countries. Following completion of the review, the President issued Proclamation No. 9645 on September 24, 2017, placing entry restrictions on nationals of eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—whose systems for managing and sharing information the President deemed inadequate. The Proclamation imposed varying restrictions by country, exempted lawful permanent residents and asylees, provided for case-by-case waivers, and directed ongoing 180-day reviews; restrictions on Chad were later lifted after it improved its practices. Plaintiffs including the State of Hawaii, three U.S. citizens with foreign-national relatives from Iran, Syria, and Yemen applying for visas, and the Muslim Association of Hawaii challenged the Proclamation in the District of Hawaii on statutory and Establishment Clause grounds. The district court granted a nationwide preliminary injunction. The Ninth Circuit affirmed on statutory grounds. The Supreme Court granted certiorari.
View caseClassifications based on alienage trigger heightened judicial solicitude because aliens constitute a discrete and insular minority that lacks political power. Courts therefore apply strict scrutiny to state laws that discriminate against aliens.
No. Heightened judicial solicitude applies primarily to state classifications. Federal alienage rules receive greater deference because immigration policy is a political function entrusted to the political branches.
Heightened judicial solicitude leads courts to apply strict scrutiny to suspect classifications such as alienage. The government must then demonstrate that the classification is narrowly tailored to serve a compelling interest.
…parents reside. Yet in San Antonio Independent School Dist. v. Rodriguez , 411 U. S. 1 (1973), we declined to review under "heightened scrutiny" a claim that a State discriminated against residents of less wealthy school districts in its provision of educational benefits. There was no suggestion in that case that a child's "lack of…