9.2 Levels of scrutiny in equal protection analysis
3 min read•july 24, 2024
Equal protection analysis uses different levels of scrutiny to evaluate laws that classify people. applies to race and fundamental rights, to gender, and to most other classifications. These levels determine how closely courts examine laws for discrimination.
The choice of scrutiny level depends on factors like history of discrimination, political power, and immutability of traits. Higher scrutiny makes laws harder to justify, while rational basis review is more deferential to legislators. This framework shapes how courts balance rights and policy goals.
Levels of Scrutiny in Equal Protection Analysis
Levels of equal protection scrutiny
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Strict scrutiny
Highest level of judicial review demands government prove law narrowly tailored to achieve compelling state interest
Applied to (race, national origin) or fundamental rights (voting, interstate travel)
Most laws fail this test placing heavy burden on government ()
Intermediate scrutiny
Middle level review requires government show law substantially related to important government interest
Applied to like gender and illegitimacy
Allows more flexibility than strict scrutiny balancing rights with policy goals ()
Rational basis review
Lowest level scrutiny requires law rationally related to legitimate government interest
Applied to all other classifications not covered by higher scrutiny levels
Most deferential to legislative decisions allows wide latitude in policymaking ()
Application of scrutiny levels
Race and national origin
Subject to strict scrutiny due to history of discrimination and immutability
Applies to racial segregation policies and programs ()
Gender and sex
Intermediate scrutiny balances protection against discrimination with recognition of biological differences
Covers military draft policies and gender-based admission practices ()
Age and disability
Generally rational basis review unless specific statutes apply heightened scrutiny
Allows flexibility for laws addressing unique needs of these groups ()
Sexual orientation
Evolving from rational basis to heightened scrutiny in recent cases
Reflects changing societal attitudes and recognition of discrimination ()
Alienage
Strict scrutiny for state laws limiting rights of non-citizens
Rational basis for federal laws due to plenary power over immigration ()
Factors determining scrutiny level
History of discrimination
Long-standing patterns of prejudice or unequal treatment increase scrutiny (Jim Crow laws)
Political powerlessness
Group's limited ability to protect interests through political process (women's suffrage movement)
Immutability of characteristic
Trait unchangeable or fundamental to identity increases protection (race, national origin)
Relevance to legitimate state interests
Whether classification relates to ability to perform or contribute to society (gender-based job restrictions)
Presence of fundamental rights
Laws impacting Court-recognized fundamental rights trigger strict scrutiny (right to marry, right to vote)
Implications of scrutiny levels
Strict scrutiny
Most laws fail this test promoting protection of vulnerable groups
Heavy burden on government to justify classification (affirmative action programs)
Safeguards fundamental rights from government infringement (restrictions on voting rights)
Intermediate scrutiny
Allows more flexibility than strict scrutiny for policy considerations
Requires substantial justification from government for gender-based distinctions
Balances protection of rights with legitimate policy goals (military service requirements)
Rational basis review
Most deferential to legislative decisions upholding majority of laws
Allows government wide latitude in economic and social policymaking
May still strike down laws found arbitrary or irrational (Romer v. Evans)