Also known as:heightened levels of scrutiny · heightened scrutiny · intermediate scrutiny
Written by attorneys · grounded in primary & secondary sources — see below
A standard of judicial review more demanding than rational basis. The government must demonstrate that the challenged action serves an important or compelling interest and that the means are substantially related or narrowly tailored to that interest.
Sources & Authorities
How it applies
Common Examples
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State Limits Contraceptive Access for Married Couples
Harold Hunt and Hilda Hernandez, a married couple, seek to fill a prescription for contraceptives at their local pharmacy. The state-owned distributor refuses to supply the pharmacy because the couple is married, citing a policy favoring larger families. The couple sues, claiming the policy burdens their marital privacy. The court applies heightened scrutiny and strikes down the restriction because the state's interest in larger families does not justify the intrusion into intimate marital decisions.
Husband Given Unilateral Control Over Marital Property
Hakim Hall and Hazel Hoffman jointly own their home. A state statute allows only the husband to sell or encumber the property without the wife's consent. Hazel challenges the law as an invalid gender classification. The court subjects the statute to heightened scrutiny and invalidates it because the classification lacks an exceedingly persuasive justification substantially related to an important governmental objective.
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
Must-Carry Rules Applied to Cable Operators
Helios Energy operates a cable system and objects to federal must-carry provisions requiring carriage of local broadcast stations. The company argues the rules burden its editorial discretion. The court applies heightened scrutiny to the content-neutral regulation and upholds it after finding that the rules advance important interests in preserving broadcast access without burdening substantially more speech than necessary.
State Military College Excludes Women
Harbor National Bank funds a scholarship program tied to admission at a state military college that admits only men. Hamid Hassan's daughter applies and is rejected solely because of her sex. She sues, alleging an unconstitutional gender classification. The court applies heightened scrutiny and invalidates the policy because the state fails to provide an exceedingly persuasive justification showing the exclusion is substantially related to an important objective.
Land Use Regulation Burdens Religious Exercise
Hector Hernandez seeks to expand his church on property he owns. A local zoning ordinance prevents the expansion and imposes substantial costs on the congregation. Hector claims the ordinance substantially burdens religious exercise. The court applies heightened scrutiny under the governing statute and finds the regulation invalid because the government cannot show the burden is the least restrictive means of advancing a compelling interest.
City of Boerne v. Flores521 U.S. 507 (1997)
Ban on Promotional Advertising by Utility
Hudson Partners, an electric utility, wants to run advertisements promoting energy consumption. A state commission prohibits such promotional advertising to conserve energy. The utility challenges the ban. The court applies heightened scrutiny to the commercial speech restriction and invalidates the total ban because the commission fails to show the prohibition directly advances the asserted interest in a narrowly tailored manner.
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980)
Common questions
Frequently Asked
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What distinguishes heightened scrutiny from rational basis review?+
Heightened scrutiny requires the government to prove an important or compelling interest and a close fit between means and ends. Rational basis review instead presumes validity if any conceivable legitimate purpose exists.
Which classifications trigger intermediate scrutiny?+
Gender classifications trigger intermediate scrutiny. The government must supply an exceedingly persuasive justification showing the classification is substantially related to an important objective.
How does heightened scrutiny apply to content-neutral speech regulations?+
Content-neutral speech regulations receive intermediate scrutiny. The government must demonstrate that the regulation advances important interests unrelated to speech suppression and does not burden substantially more speech than necessary.
539 U.S. 558 (2003)Constitutional Law
…scrutiny under the doctrine of "substantive due process." Roe and Casey , of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition. (2) Bowers , the Court says, has been subject to "substantial and continuing…