Also known as: heightened scrutiny · intermediate scrutiny · strict scrutiny
Written by attorneys · grounded in primary & secondary sources — see below
A standard of judicial review more demanding than rational-basis review that requires the government to demonstrate a substantial or compelling justification for a classification or restriction. The standard applies when a law burdens a fundamental right or employs a suspect or quasi-suspect classification. Courts invalidate measures that fail to satisfy the applicable level of justification and tailoring.
City officials in a Florida municipality enact an ordinance that singles out the ritual slaughter of animals practiced by members of a particular religious group. Hunter Hughes, a practitioner, faces prosecution under the measure. A court applies heightened scrutiny because the ordinance targets religious conduct and is not neutral or generally applicable. The city cannot show the law is necessary to a compelling interest, so the ordinance is struck down.
A city council adopts a program reserving a percentage of public contracts exclusively for minority-owned businesses without identifying specific past discrimination by the city in the relevant industry. Hassan Hakim, a nonminority contractor, is denied a bid opportunity. The court subjects the racial preference to heightened scrutiny. Because the city offers only general assertions of societal discrimination rather than a strong evidentiary basis, the program fails.
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A city adopts a foster-care policy that bars agencies from declining to certify same-sex couples but allows officials to grant individualized exemptions in other circumstances. Hannah Hale operates a religiously affiliated agency that cannot comply. The court finds the policy is not generally applicable and therefore triggers heightened scrutiny. The city cannot demonstrate that enforcing the rule against the agency is necessary to a compelling interest.
A state statute prohibits married couples from using contraceptives and authorizes criminal penalties for physicians who provide them. Hilda Hernandez and her husband seek the devices from a licensed provider. The court recognizes a protected zone of marital privacy and subjects the prohibition to heightened scrutiny. The state cannot justify the direct intrusion into intimate marital decisions.
A state maintains a publicly funded military college that admits only men and offers no comparable program for women. Harriet Hamilton, a qualified female applicant, is denied admission. The court applies heightened scrutiny to the gender classification. The state fails to present an exceedingly persuasive justification that is substantially related to an important objective and does not rely on overbroad stereotypes.
Heightened scrutiny applies when a law employs a suspect classification such as race or burdens a fundamental right. Gender classifications receive intermediate scrutiny. Other classifications receive only rational-basis review unless they implicate a protected category or right.
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The government must show an exceedingly persuasive justification that the classification is substantially related to an important governmental objective. The interest must be genuine and may not rest on overbroad generalizations about the inferiority of women.
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A law is not generally applicable if it permits individualized exemptions at the discretion of government officials. Such a scheme triggers heightened scrutiny under the Free Exercise Clause even if the law appears facially neutral.
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The program must be supported by a strong basis in evidence of specific past discrimination by the governmental actor in the relevant industry and jurisdiction. General assertions of societal discrimination are insufficient.
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