Intermediate and Strict Scrutiny

Rational basis defers to the government. For some laws, the Court demands more. Two higher tiers developed after footnote four: strict scrutiny and intermediate scrutiny. Each has two parts: how important the government's goal must be (the interest) and how closely the law must fit it (the fit). Learn them as pairs.

The three tiers as pairs.
Tier	Interest	Fit	Burden	Typical result
Strict scrutiny	Compelling	Narrowly tailored (often: the least restrictive means)	The government	Laws usually fall
Intermediate scrutiny	Important	Substantially related	The government	Laws often fall; sex classifications need an "exceedingly persuasive justification"
Rational basis	Legitimate	Rationally related	The challenger	Laws almost always stand

Tap a tier to see its interest, fit and burden.

Why it works

Why have tiers at all? Each tier sets how much the Court trusts the political process for a type of law. Where a law classifies by race, or burdens a fundamental right, history shows the political process often fails, so the government must justify the law with a compelling reason and a close fit. Where a law classifies by sex, the Court found that stereotypes had long shaped law, but that some real differences may justify distinctions, so it chose a middle tier. The tiers make results more predictable than case-by-case balancing, though critics say they are too rigid or too open to manipulation.

Key idea

Intermediate scrutiny requires an important government interest and means substantially related to it. Strict scrutiny requires a compelling interest and means narrowly tailored (often, the least restrictive means), with the burden on the government.

Worked example: Matching interest and fit

A state law gives a benefit to one group and not another. The state says its goal is "saving money" and the law is "reasonable." Which tier could that justification satisfy?

Saving money is a legitimate interest; courts rarely treat it as important or compelling by itself.
"Reasonable" describes a rational relation, not substantial relation or narrow tailoring.
So the justification fits rational basis only.

Answer: Only rational basis. If the law triggers a higher tier, this justification will likely fail.

Worked example: Narrow tailoring

A city, wanting to reduce noise (assume a compelling interest for the exercise), bans all speech in public parks. Is the ban narrowly tailored?

Narrow tailoring asks whether the means are no broader than needed.
A total ban sweeps in quiet speech that causes no noise.
Less restrictive means exist: decibel limits, quiet hours.

Answer: No. Even a compelling interest cannot save a measure that is far broader than the problem. (Speech cases have their own rules, covered in Constitutional Law II.)

Common mistake

Mixing up the interest and the fit at each tier. Learn them as pairs: legitimate and rational; important and substantially related; compelling and narrowly tailored. Check that your answer names both parts of the same tier.

Strict scrutiny is often called "strict in theory, fatal in fact," but the Court has said that is not always so; some laws survive it. You will apply these tiers to race in Race and Strict Scrutiny and to sex in Sex Discrimination.

This is an educational course, not legal advice.

Intermediate and Strict Scrutiny

Practice

Builds on

Leads to

Sources and further reading