Levels of Scrutiny - Law Notes

LEVELS OF SCRUTINY The Brown decision is a perfect entry point into discussion about how the Court thinks about issues of constitutionality, including those involving suspect classes of people. At around the same time the Brown cases, the Court fashioned what has come to be called the “strict scrutiny” test. This test is a two-step process and is used in very particular cases. The test goes like this: Strict Scrutiny 1. Is the law that is being challenged as unconstitutional one that either (a) discriminates on the basis of race/ethnicity or (b) infringes on a fundamental right (like, the rights contained in the Bill of Rights)? 2. If Step 1 is met, the government has the burden of proving that the law: a. Furthers a compelling government interest; b. Is narrowly tailored; and c. Uses the least restrictive means to accomplish its goal. If the government cannot prove ANY of those three things, the law is unconstitutional. The Supreme Court used the strict scrutiny test as a model for creating two additional tests and they are very similar. They are: Intermediate Scrutiny 1. Is the law that is being challenged as unconstitutional one that discriminates on the basis of sex, gender, sexual orientation, or legitimacy? 2. If Step 1 is met, the government has the burden of proving that the law: a. Furthers an important government interest; and b. Is substantially related to that interest. If the government cannot prove ANY of those two things, the law is unconstitutional. Rational Basis Review 1. Is the law that is being challenged as unconstitutional not in one of the areas anticipated by the other two tests (i.e. any other type of law the government can pass)? 2. If Step 1 is met, the plaintiff has the burden of proving that the law: a. Does not further a legitimate government interest; and b. Is not rationally related to that interest. If the plaintiff cannot prove ANY of those things, the law is constitutional. Note the similarities and differences. Think through what each of those tests means and how they relate to one another. As you do so, consider the following hypotheticals. What test would apply in these cases? Would the law be constitutional or unconstitutional? Remember, there are not always “right” answers; what matters more is that you can make an argument in each case: Hypotheticals 1. A federal law grants the military authority to round up all Asians, immigrants or otherwise, and put them in internment camps in the Utah desert. 2. A federal law says that men with mustaches can’t work for the Air Force. 3. A federal law requires firefighters to pass physical and mental examinations before being hired. 4. Under state law, a state university uses a 100-point scoring system to help admissions counselors “grade” prospective students as a way of determining whom to admit. The test gives points for a variety of aspects of a prospective student – sports, extracurricular activities, GPA, standardized tests, etc. Students with higher scores are admitted or more likely to be admitted. The state university gives an automatic 20-points to any minority student. 5. A federal law says that women with mustaches can’t work for the Air Force. 6. A state law prevents pregnant women from working in government offices. 7. A federal law makes it illegal to sell non-intoxicating beer (i.e. 3.3% alcohol) to males under 21, but makes it legal to sell the same beer to females over the age of 18. 8. A federal law says that women cannot serve in combat roles within the military. 9. A state law makes it illegal for transgendered persons to use their bathroom of choice. 10. A state law bans political speech on crowded street corners during rush hour.