When the constitutionality of a law is challenged, both state and federal courts will commonly apply one of three levels of judicial scrutiny.
The level of scrutiny that's applied determines how a court will go about analyzing a law and its effects. It also determines which party -- the challenger or the government -- has the burden of proof.
Although these tests aren't exactly set in stone, here is the basic framework for the most common levels of scrutiny applied to challenged laws:
This is the highest level of scrutiny applied by courts to government actions or laws.
The U.S. Supreme Court has determined that legislation or government actions which discriminate on the basis of race, national origin, religion, and alienage must pass this level of scrutiny to survive a challenge that the policy violates constitutional equal protection.
This high level of scrutiny is also applied whenever a "fundamental right" is being threatened by a law, like the right to marriage.
Strict scrutiny requires the government to prove that:
- There is a compelling state interest behind the challenged policy, and
- The law or regulation is narrowly tailored to achieve its result.
The next level of judicial focus on challenged laws is less demanding than strict scrutiny. In order for a law to pass intermediate scrutiny, it must:
- Serve an important government objective, and
- Be substantially related to achieving the objective.
This test was first accepted by the U.S. Supreme Court in 1976 to be used whenever a law discriminates based on gender or sex. Some federal appellate courts and state supreme courts have also applied this level of scrutiny to cases involving sexual orientation.
As with strict scrutiny, intermediate scrutiny also places the burden of proof on the government.
Rational Basis Review
This is the lowest level of scrutiny applied to challenged laws, and it has historically required very little for a law to pass as constitutional.
Under the rational basis test, the person challenging the law (not the government) must prove either:
- The government has no legitimate interest in the law or policy; or
- There is no reasonable, rational link between that interest and the challenged law.
Courts using this test are highly deferential to the government and will often deem a law to have a rational basis as long as that law had any conceivable, rational basis -- even if the government never provided one. This test typically applies to all laws or regulations which are challenged as irrational or arbitrary as well as discrimination based on age, disability, wealth, or felony status.
These levels of scrutiny can and will continue to change as courts apply them in the future.
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