Also known as: intermediate tests · intermediate scrutiny
Written by attorneys — see sources below.
A standard of judicial review positioned between rational basis and strict scrutiny. The government must demonstrate that a challenged classification or regulation is substantially related to an important governmental objective and that the means are substantially tailored to that objective.
Ike Ingram and Isabella Ingram jointly own rental properties. A state statute permits only Ike to execute a deed conveying one parcel. Isabella sues, alleging an equal protection violation. The court applies intermediate scrutiny because the statute draws an explicit gender line. The statute fails because the state offers no evidence that limiting authority to husbands substantially advances an important interest in efficient record-keeping.
Interlink Communications operates a streaming service. A federal rule requires it to carry a government-curated channel of independent films. Interlink sues, claiming the mandate burdens its speech. The court applies intermediate scrutiny to the content-neutral obligation. The rule survives because the government shows that promoting access to independent content advances an important interest and the single-channel requirement does not burden substantially more speech than necessary.
Isaiah Ishikawa applies to a state military college that admits only men. The state defends the policy as preserving educational diversity. The court subjects the gender classification to intermediate scrutiny. The policy fails because the state cannot supply an exceedingly persuasive justification that is substantially related to an important objective and instead relies on overbroad stereotypes about men and women.
Iain Irons seeks support for his nonmarital child six years after birth. State law bars such suits after six years while allowing marital children to seek support indefinitely. Iain challenges the limitation. The court applies intermediate scrutiny to the illegitimacy classification. The statute fails because the state presents no evidence that the six-year cutoff is substantially related to preventing stale or fraudulent claims.
Integrity Partners posts directional signs for a temporary event. A town ordinance imposes stricter size and duration limits on directional signs than on ideological signs. Integrity sues under the First Amendment. The court determines that the distinction is content-based and therefore subject to strict scrutiny rather than intermediate scrutiny. The ordinance is struck down because the town cannot satisfy the higher standard.
The Town of Gilbert, Arizona, maintains a comprehensive Sign Code that categorizes outdoor signs by the type of information they convey and imposes different restrictions on each category. Ideological signs communicating messages or ideas for noncommercial purposes may be up to 20 square feet and displayed without time limits. Political signs designed to influence elections may be up to 32 square feet and displayed up to 60 days before a primary and 15 days after a general election. Temporary directional signs relating to qualifying events, such as meetings of nonprofit groups, are limited to 6 square feet, may be displayed no more than 12 hours before and 1 hour after the event, and are restricted in placement. Petitioners Good News Community Church and its pastor Clyde Reed are small nondenominational churches that hold services at various temporary locations in the Town. To advertise their services, the Church posts 15 to 20 temporary signs around the Town early on Saturday mornings displaying the Church name and the time and location of the next service, removing them around midday on Sunday. The Town's Sign Code compliance manager cited the Church twice for violating the time limits on temporary directional signs and for failing to include an event date on the signs. Town officials confiscated one sign, which Reed retrieved from municipal offices. Reed contacted the compliance department to reach an accommodation, but the manager informed the Church there would be no leniency and promised to punish future violations. The Churches filed suit in the United States District Court for the District of Arizona, alleging the Sign Code violated the First Amendment, and sought a preliminary injunction. The District Court denied the motion. The Ninth Circuit affirmed, concluding the Sign Code was content neutral. The Supreme Court granted certiorari.
View caseInnovate Pharmaceuticals seeks to expand a facility used for religious services. A city zoning rule substantially burdens the expansion. The company invokes a federal statute requiring strict scrutiny of such burdens. The court holds that the statute exceeds Congress's enforcement power under the Fourteenth Amendment. Intermediate scrutiny is not the governing test because the statute attempts to impose a stricter standard than the Constitution requires.
St. Peter Catholic Church was built in 1923 in Boerne, Texas. Its structure replicates the mission style of the region's earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. To meet the needs of the congregation, the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building. A few months later, the Boerne City Council passed an ordinance authorizing the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district. Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district which they argued included the church, denied the application. The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas. The complaint contained multiple claims, but to this point the litigation has centered on RFRA and the question of its constitutionality. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under section 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal and the Fifth Circuit reversed, finding RFRA to be constitutional. The Supreme Court granted certiorari and now reverses. Congress enacted RFRA in direct response to the Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith. RFRA prohibits government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability. Unless the government can demonstrate that the burden is in furtherance of a compelling governmental interest, it must also show that the burden is the least restrictive means of furthering that interest. The Act applies to all federal and state law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of RFRA.
View caseGender classifications receive intermediate scrutiny. The government must show that the classification is substantially related to an important governmental objective and must supply an exceedingly persuasive justification that is genuine rather than hypothesized.
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Yes. Content-neutral regulations such as must-carry rules for cable or streaming platforms are evaluated under intermediate scrutiny. The government must demonstrate that the regulation advances important interests unrelated to the suppression of speech and does not burden substantially more speech than necessary.
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A statute granting husbands unilateral authority over jointly owned marital property fails intermediate scrutiny. The classification is not substantially related to an important governmental objective and instead rests on overbroad generalizations that perpetuate traditional gender roles.
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Yes. Statutes that impose shorter limitations periods on paternity actions brought on behalf of nonmarital children than on actions brought on behalf of marital children must be substantially related to an important governmental objective. A six-year cutoff that lacks supporting evidence of preventing stale claims fails the test.
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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…