Also known as: intermediate scrutiny · intermediate standard of review · mid-level scrutiny
Written by attorneys — see sources below.
A standard of judicial review under which a classification or regulation must serve an important governmental objective and be substantially related to achieving that objective. The government bears the burden of providing an exceedingly persuasive justification that is genuine rather than hypothesized.
Idris Ives and his wife jointly own farmland. A state statute designates the husband as head of household and permits him alone to pledge the assets for a loan. His wife sues, claiming the statute violates equal protection. The court applies intermediate scrutiny and strikes down the law because the gender classification is not substantially related to any important governmental objective.
Ingrid Innes operates a cable system. A federal rule requires her to carry local broadcast stations on her channels. She challenges the rule as burdening speech. The court applies intermediate scrutiny, upholds the regulation because it advances important interests in preserving free television unrelated to suppressing speech, and finds the burden is not substantially greater than necessary.
India Inoue applies to a state military college that admits only men. She sues after denial. The court subjects the gender classification to intermediate scrutiny. The state fails to supply an exceedingly persuasive justification showing the exclusion is substantially related to an important objective without relying on overbroad stereotypes.
Ilana Isaacs seeks support for her nonmarital child six years after birth. A statute bars such suits after six years while allowing marital children to seek support indefinitely. She challenges the classification. The court applies intermediate scrutiny and invalidates the rule because the state shows no substantial relationship between the time limit and preventing stale claims.
Iain Irons runs a utility company. A state commission prohibits promotional advertising to conserve energy. He challenges the ban. The court applies intermediate scrutiny to the commercial speech restriction, requires the state to show the rule directly advances a substantial interest, and evaluates whether the means are no more extensive than necessary.
In December 1973, the Public Service Commission ordered electric utilities in New York State to cease all advertising that promoted the use of electricity because the interconnected utility system lacked sufficient fuel stocks for the 1973-1974 winter. The order rested on the Commission's finding that the system did not have sufficient fuel stocks or sources of supply to meet customer demands. Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp. opposed the ban on First Amendment grounds. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977. The Policy Statement divided advertising expenses into promotional and institutional categories. It permitted informational advertising designed to encourage shifts of consumption from peak demand times to periods of low electricity demand. The Commission banned promotional advertising because additional electricity would be more expensive to produce and promotional advertising would give misleading signals to the public. Central Hudson challenged the order in state court. The order was upheld through the New York Court of Appeals. The Supreme Court noted probable jurisdiction and reversed.
View caseIsrael Irving bids on a federal highway project. The government awards bonus points only to subcontractors owned by members of specified racial groups. He sues. The court rejects intermediate scrutiny for the racial classification and requires strict scrutiny instead, holding that all racial classifications demand a compelling interest and narrow tailoring.
Adarand Constructors, Inc., a Colorado-based firm specializing in guardrail work, submitted the low bid for a subcontract on a federal highway construction project. Despite submitting the lowest bid, Adarand lost the subcontract to another firm that had been certified as a small business controlled by socially and economically disadvantaged individuals. The prime contractor received a financial incentive from the federal government for awarding the subcontract to the certified firm. This incident prompted Adarand to challenge the government's practice of providing such incentives based on race-based presumptions. The federal subcontracting program derives from the Small Business Act and the Surface Transportation and Uniform Relocation Assistance Act of 1987. The Small Business Administration administers programs that presume members of specified racial groups are socially disadvantaged, though the presumption is rebuttable and allows for individualized showings of disadvantage. Department of Transportation regulations require federal agencies to set goals for participation by disadvantaged businesses and establish certification procedures that can be performed by the SBA, state highway agencies, or other acceptable authorities. Prime contractors receive monetary compensation under subcontracting compensation clauses when they use certified disadvantaged business enterprises as subcontractors. Adarand sued federal officials in federal district court, alleging that the race-based presumptions violated the equal protection component of the Fifth Amendment. The district court granted summary judgment for the government. The Tenth Circuit Court of Appeals affirmed the district court's judgment. Adarand then petitioned the Supreme Court for review. Adarand sought declaratory and injunctive relief to prevent future use of the subcontractor compensation clauses in government contracts. To establish standing for this forward-looking relief, Adarand presented evidence that it was very likely to bid on additional government contracts offering similar financial incentives in the near future. The Supreme Court granted certiorari to consider the constitutional challenge.
View caseImportant interests include preventing teenage pregnancy, preserving free television access, and promoting grid stability. The interest must be genuine and the classification must be substantially related to it without relying on stereotypes.
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The government bears the burden to demonstrate an exceedingly persuasive justification. It must show both an important objective and a substantial relationship between the classification and that objective.
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No. All racial classifications receive strict scrutiny regardless of whether they confer benefits or burdens. Intermediate scrutiny applies to gender and illegitimacy classifications and certain content-neutral speech regulations.
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The classification fails intermediate scrutiny. Overbroad generalizations about traditional roles or physical capacities do not supply an exceedingly persuasive justification and cannot justify treating men and women differently.
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…holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say, one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the…