Also known as:strict scrutiny · strict scrutiny review · strict scrutiny standard · strict scrutiny test · strict scrutiny doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A standard of judicial review that requires the government to demonstrate that a challenged law or policy is narrowly tailored to serve a compelling governmental interest. The government bears the burden of proof under this standard. Laws subject to this review are presumptively invalid unless they satisfy both prongs of the test.
Sources & Authorities
How it applies
Common Examples
4
Religious Slaughter Ordinance Challenged
Sylvia Santos operated a Santeria temple that performed animal sacrifices according to religious tradition. City officials enacted an ordinance that singled out the precise method of slaughter used in those rituals while leaving other forms of animal killing untouched. Santos sued, claiming the ordinance targeted her faith. The court applied strict scrutiny because the law was not neutral or generally applicable and struck it down after the city failed to prove the measure was necessary to any compelling interest.
Minority Contractor Set-Aside Invalidated
Sebastian Santos, owner of a minority-owned construction firm, bid on a city project that reserved a fixed percentage of subcontracts for minority businesses. The city offered only general assertions of past societal discrimination to justify the program. Santos sued under the Equal Protection Clause. The court subjected the set-aside to strict scrutiny and invalidated it because the city lacked evidence of specific, identified discrimination in the local industry that the program was narrowly tailored to remedy.
Put it into practice
Test Yourself
10
Practice Questions5
· 8 primary sources
Select any source to read its text and confirm it supports the definition.
Cases
Study Supplements
Foster Agency Exemption Policy Tested
Simone Sanders ran a religious foster agency that declined to certify same-sex couples on faith-based grounds. City officials refused to renew her contract unless she agreed to certify all applicants, even though the policy allowed case-by-case exemptions for secular reasons. Sanders sued, alleging a free exercise violation. The court applied strict scrutiny because the policy was not generally applicable and held that the city could not enforce it against the agency without satisfying the demanding standard.
Disparaging Trademark Ban Struck Down
Solomon Silver sought to register a trademark containing a term that some found offensive. Federal examiners rejected the application under a statute barring registration of disparaging marks. Silver sued, arguing the bar was an unconstitutional restriction on private speech. The court applied strict scrutiny because the restriction was viewpoint-based and invalidated the statute after the government could not show it was narrowly tailored to a compelling interest.
Common questions
Frequently Asked
4
When does a law trigger strict scrutiny under the Free Exercise Clause?+
A law triggers strict scrutiny when it is not neutral or generally applicable. This occurs when the law targets religious practice or permits individualized exemptions that allow officials to discriminate against religion. The government must then prove the law is narrowly tailored to a compelling interest.
Supporting sources
What evidentiary showing must support a race-based affirmative action program under strict scrutiny?+
The program must rest on a strong basis in evidence of specific past discrimination in the relevant industry and jurisdiction. General assertions of societal discrimination are insufficient. The program must also be narrowly tailored to remedy that identified discrimination.
Supporting sources
Does strict scrutiny apply to content-based restrictions on speech?+
Yes. Content-based regulations are subject to strict scrutiny and are presumptively unconstitutional. The government must show the restriction is necessary to serve a compelling interest and is narrowly drawn to achieve that interest.
Supporting sources
How does strict scrutiny differ from rational basis review in equal protection cases?+
Strict scrutiny applies to suspect classifications such as race and requires the government to prove narrow tailoring to a compelling interest. Rational basis review applies to most other classifications and upholds a law if it is rationally related to a legitimate interest. The burden and the level of justification are far more demanding under strict scrutiny.
Supporting sources
Constitutional LawThe relation of nation and states in a federal system · Intergovernmental immunitiesNEXTGENFoundational