Also known as:strict scrutiny · strict scrutiny review · strict scrutiny standard
Written by attorneys · grounded in primary & secondary sources — see below
A standard of judicial review requiring the government to demonstrate that a challenged law or classification is narrowly tailored to serve a compelling governmental interest. The standard applies when government action employs a suspect classification or burdens a fundamental right. Laws subject to this review are presumptively invalid and rarely survive.
Sources & Authorities
How it applies
Common Examples
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Santeria Ritual Ordinance Challenged
Sierra Santos opens a small temple in the city and performs animal sacrifices as part of her religious practice. The city enacts an ordinance that singles out the precise slaughter method used in her ceremonies while leaving other animal killings untouched. When Santos sues, the court applies strict judicial scrutiny because the ordinance targets religious conduct and is not neutral. The city cannot show the law is necessary to any compelling interest, so the ordinance falls.
Minority Contractor Set-Aside Program
Simon Stern, a non-minority contractor, challenges a city program that reserves a fixed percentage of public contracts for minority-owned firms. The city offers only general assertions of past societal discrimination rather than evidence of specific discrimination in the local construction industry. The court subjects the program to strict judicial scrutiny and finds no strong basis in evidence for the racial classification. The set-aside is invalidated.
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Cases
Casebooks
Hornbooks
Course Outlines
Foster Agency Exemption Policy
Stella Shapiro runs a religious foster agency that declines to certify same-sex couples on faith-based grounds. City officials retain discretion to grant individualized exemptions from the nondiscrimination rule for other agencies. When the city enforces the rule against Shapiro, the court finds the policy is not generally applicable and applies strict judicial scrutiny. The city fails to demonstrate that its policy is narrowly tailored to a compelling interest.
Disparaging Trademark Ban
Santiago Sanchez seeks to register a trademark containing a term some view as disparaging. The Patent and Trademark Office refuses registration under the statutory bar on derogatory marks. The court treats the refusal as a viewpoint-based restriction on private speech and applies strict judicial scrutiny. The government cannot justify the ban as necessary to a compelling interest, so the provision is struck down.
Contraceptive Access Restriction
Sabrina Shah and her husband seek contraceptive counseling at a state university health center that limits services to married students. The policy burdens the fundamental right of marital privacy. The court applies strict judicial scrutiny to the classification and finds no compelling interest that justifies distinguishing between married and unmarried persons. The restriction is invalidated.
Griswold v. Connecticut381 U.S. 479 (1965)
Campaign Finance Restriction
Sebastian Santos, a political candidate, challenges a federal limit on contributions that singles out certain issue advocacy. The restriction burdens core political speech. The court subjects the limit to strict judicial scrutiny and requires the government to prove the measure is narrowly tailored to a compelling interest. The provision fails that test and is struck down.
McConnell v. Federal Election Commission540 U.S. 93, 226–27 (2003)
Common questions
Frequently Asked
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What triggers strict judicial scrutiny in equal protection cases?+
Strict judicial scrutiny is triggered when a law employs a suspect classification such as race or alienage or burdens a fundamental right. Once triggered, the government must prove the classification is narrowly tailored to a compelling interest. General assertions of societal discrimination are insufficient to meet this burden.
Supporting sources
How does strict judicial scrutiny differ from rational basis review?+
Strict judicial scrutiny places the burden on the government to show a compelling interest and narrow tailoring. Rational basis review requires only a legitimate interest and a rational relationship. Laws reviewed under strict scrutiny are far more likely to be invalidated.
Supporting sources
Does a law that allows discretionary exemptions trigger strict scrutiny under the Free Exercise Clause?+
Yes. When a law or policy permits individualized exemptions at the discretion of officials, it is not generally applicable. The presence of such discretion triggers strict judicial scrutiny under the Free Exercise Clause.
Supporting sources
What must the government prove to survive strict judicial scrutiny?+
The government must demonstrate both that the challenged action serves a compelling governmental interest and that the means chosen are narrowly tailored to achieve that interest. Failure on either prong invalidates the law.
Supporting sources
576 U.S. 644 (2015)Legislation and Regulation
…law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehr v. Lewin , 74 Haw. 530, 852 P. 2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its…