Courts come up with guidelines to help make determinations. When it comes to reviewing whether a government action (often a law or a regulation) violates the Constitution, a court first chooses a Level of Scrutiny. Show
The court must determine whether it will be skeptical of government action, or be less nit-picky. That depends on the sensitivity of the issue. Certain liberties are more highly protected than others. Certain classes of people are more highly protected than others. These factors raise suspicion. The court will evaluate various factors that are likely to raise suspicion to determine the level of scrutiny. SpectrumYou can consider the levels of scrutiny as existing on a spectrum: where Rational-Basis Review is at one end and Strict Scrutiny is at the other. Our infographic outlines the three most common points on the spectrum (Rational-Basis, Intermediate Scrutiny, and Strict Scrutiny). The Supreme Court has found the following situations to correspond to these levels of scrutiny. Rational-Basis ReviewThe Supreme Court came up with Rational-Basis Review in Nebbia v. New York (1934). The NY government had decided to regulate the prices of dairy (setting a minimum retail price). Nebbia, a store owner, violated the law and challenged that his conviction was unfair. The Due Process Clause in the Constitution, Nebbia said, protected him against unfair or unreasonable regulatory power. In denying Nebbia of his claim, the Supreme Court said the government has the right to create general restrictions on private conduct for the purpose of regulating the economy, so long as the government action is not “arbitrary, discriminatory, or demonstrably irrelevant” to the action regulated. This case did not deserve any higher level of scrutiny because it did not involve a particularly sensitive issue, like free speech or discrimination against someone in a protected class. It was, in the Court’s opinion, just regular government regulation, and it only had to be reasonable. Strict ScrutinyStrict Scrutiny is at the opposite end of the spectrum. The Supreme Court has declared government regulation should be scrutinized very strictly when it infringes on a protected liberty (like procreation or marriage) or a protection action (like political speech), or when it unfairly discriminates against a protected class (like race or national origin). Skinner v. Oklahoma (1942) was an early case in which the Court decided the harshest review (strict scrutiny) was appropriate. Oklahoma had passed a law allowing the state to sterilize a person who was convicted three or more times of a “felony of moral turpitude.” The Court said the act, intending to deprive an individual of one of the most basic liberties – “a right which is basic to the perpetuation of a race” – deserved “strict scrutiny.” The Court had not yet adopted the formal characterization of the standard that courts use today (reviewing to ensure the law is “narrowly tailored to achieve a compelling government interest”). A well-known case in which the Supreme Court applied Strict Scrutiny and made the rare ruling in favor of the government is Korematsu v. United States (1944). During a state of war with Japan, the U.S. government had issued an Executive Order that all Japanese must be excluded from certain sensitive areas. One of them was San Leandro, California, where Korematsu lived. Of Japanese descent, Korematsu was convicted for refusing to leave. He challenged the law as a violation of his Constitutional liberty rights. The Court admitted that classifications based on race had to satisfy the most “rigid scrutiny” (strict scrutiny) but said the “circumstances of direst emergency and peril” justified the action. Korematsu is known today as an “ugly” mark of our nation’s past, but it has never been explicitly overruled. See this article in Politico connecting the case to the case over Trump’s Travel Ban. And one in the Washington Post written by Korematsu’s daughter. During the civil rights era and through today, the Supreme Court has applied Strict Scrutiny to government actions that classify people based on race. For example, in Loving v. Virginia (1967), the Supreme Court applied Strict Scrutiny to strike down Virginia’s law banning interracial marriage. Intermediate ScrutinyGovernment classifications based on gender deserve a moderate level of scrutiny (“quasi-suspect classifications”). Ironically enough, the standard was created in a case bought by a male against an Oklahoma law allowing females to purchase alcohol at a younger age (18) than it allowed males (21). In Craig v. Boren (1976), the Supreme Court said the law did not withstand “intermediate scrutiny.” Restrictions on certain types of speech that are regarded as less expressive than political speech (like commercial speech) also get intermediate scrutiny. The Supreme Court will be hearing NIFLA v. Becerra this term, a case in which the appeals court applied intermediate scrutiny to a California law requiring anti-abortion clinics to give notice that abortions are available elsewhere. NIFLA will argue to the Supreme Court that the law deserves Strict Scrutiny. More informationSee this report on Levels of Scrutiny Under the Equal Protection Clause from the University of Missouri, Kansas City. In United States constitutional law, a suspect classification is a class or group of persons meeting a series of criteria suggesting they are likely the subject of discrimination. These classes receive closer scrutiny by courts when an Equal Protection claim alleging unconstitutional discrimination is asserted against a law, regulation, or other government action, or sometimes private action. When a law or government action affects a group that falls under a "suspect classification," courts apply the strict scrutiny standard in reviewing the constitutional validity of a law or action.
The United States Supreme Court has mentioned a variety of criteria that, in some combination, may qualify a group as a suspect class, but the Court has not declared that any particular set of criteria are either necessary or sufficient to qualify.[1] Some of the criteria that have been cited include:
The Supreme Court established the judicial precedent for suspect classifications in the cases of Hirabayashi v. United States, 320 U.S. 81 [5] and Korematsu v. United States, 323 U.S. 214 (1944).[6] The Supreme Court recognizes race, national origin, religion and alienage as suspect classes; it therefore analyzes any government action that discriminates against these classes under strict scrutiny.
In Perry v. Schwarzenegger, the U.S. District Court for the Northern District of California in its Findings of Fact commented that sexual orientation could be considered a suspect class, but on the facts presented Proposition 8 failed even to satisfy the much more deferential rational basis review.[7] The U.S. District Court for the District of Nebraska held the same in Citizens for Equal Protection v. Bruning,[8] but was reversed on appeal by the United States Court of Appeals for the Eighth Circuit.[9] As the law currently stands, neither sexual orientation nor gender identity is considered a federal suspect class, although many states do consider them such. AlienageAlienage, or the state of being an alien, i.e. a non-citizen of the United States, is a unique category. For purposes of state law, legal aliens are a suspect class (Graham v. Richardson, 403 U.S. 365 (1971)). As such, state actions are analyzed according to strict scrutiny. In contrast, because the United States Congress has the power to regulate immigration, federal government action that discriminates based on alienage will receive rational basis scrutiny. State acts that affect unlawful immigrants are generally analyzed with rational basis review unless the topic is education of children, in which case they are analyzed under intermediate scrutiny based on Plyler v. Doe, 457 U.S. 202 (1982). Quasi-suspect classIntermediate scrutiny is applied to groups that fall under a "quasi-suspect classification." sex[10] and legitimacy of birth have been held to be quasi-suspect classes. In 2012, the U.S. District Court for Northern California discussed this type of classification, but applied heightened scrutiny without specifically labeling gays and lesbians a suspect or quasi-suspect class in its decision.[11] Striking down Section 3 of DOMA as unconstitutional in Windsor v. United States (2012), the 2nd Circuit Court of Appeals held sexual orientation to be a quasi-suspect classification, and determined that laws that classify people on such basis should be subject to intermediate scrutiny.[12] It was the first time a federal court had applied quasi-suspect classification in a sexual orientation case.[13] The Supreme Court, however, has not decided whether sexual orientation fits into any identified class. All othersRational basis scrutiny is applied to all other discriminatory statutes. Rational basis scrutiny currently covers all other discriminatory criteria—e.g., age, disability, wealth, political preference, political affiliation, or felons. To satisfy the strict scrutiny, suspect classifications such as race, alienage, or national origin must be necessary to promote a compelling state interest when there is no less restrictive alternative method available to accomplish the government (state's) interest. The practical result of this legal doctrine is that government sponsored discrimination on the account of a citizen's race, skin color, ethnicity, religion, or national origin is almost always unconstitutional, unless it is a compelling, narrowly tailored and temporary piece of legislation dealing with national security, defense, or affirmative action. Korematsu v. United States, regarding Japanese internment, and Grutter v. Bollinger, upholding affirmative action based upon racial diversity, are the only cases in which a racially discriminatory law has been upheld under the strict scrutiny test. Strict scrutiny is also applied to restrictions of any fundamental right, regardless of the group involved.[14] Intermediate scrutinyWhen intermediate scrutiny is involved, the courts are more likely to oppose the discriminatory law when compared to a rational basis review particularly if a law is based on gender. However, a court will likely uphold a discriminatory law under intermediate scrutiny if the law has an exceedingly persuasive justification and applies to real, fact-based, or biological differences between the sexes. Mississippi University for Women v. Hogan, 102 S.Ct. 3331 (1982), Nguyen v. INS, 121 S.Ct. 2053 (2001). Rational basisWhen rational basis review is used, it means that the classification is one that overwhelmingly tends to be rational, e.g. distinguishing criminals from non-criminals. This leads to wide political discretion and a focus of judicial resources to other cases where the classification employed tends to be more suspicious, and thus close judicial balancing is needed. The Supreme Court's holdings impose a minimum standard to which each State must adhere. Hence, a State law that discriminates against citizens because of their race, must be reviewed by the applicable State and inferior federal courts using the strict scrutiny basis of review. A State may, generally, choose to give its citizens more rights or protections than the minimum federal standard when considering state law. For example, in 2008 the Supreme Court of California used the strict scrutiny basis of review to strike down a California statute denying legal recognition of same-sex marriages. California classifies sexual orientation as a suspect class under state law. Connecticut and Iowa classify sexual orientation as a quasi-suspect class under their respective state laws.[15]
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What are the 3 quasi suspect classifications that require heightened scrutiny to be applied?
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