Heightened scrutiny is a standard of evaluation that US judges must meet in certain kinds of cases when a policy, rule, or law is brought to a court by someone who wishes to challenge it. It is one of three levels of scrutiny and is also known as intermediate scrutiny. The lower level is the rational basis test, while the highest is strict scrutiny. When judges review laws, they must consider whether they serve the interests of the country while also balancing the need to protect civil liberties.
Some legal scholars object to the interchangeable use of intermediate and heightened scrutiny. Judges may interpret it as a way station between intermediate and strict levels, as some legal discussions of the term define it slightly differently. This reflects shifting attitudes in the legal community and may eventually result in a more formalized split, providing four levels of judicial review instead of three.
The concept of subjecting certain kinds of legal challenges to more rigorous review stems from the equal protection clause in the 14th Amendment to the US Constitution. Whenever a law has the potential to infringe on a civil right, the government must be able to justify the law and show how it meets the goal of protecting national interests. If the law is too broad in scope, does not appear to accomplish what the government claims it does, or creates an unreasonable infringement, a judge must strike it down.
When a judge uses heightened scrutiny, she must first determine that the law does indeed further the interests of the United States in some way. Secondly, she must evaluate the law to see if it is actually relevant to the interests it claims to protect. Some people add a third criteria, a requirement that judges decide if the intrusion the law creates is truly necessary.
People can bring lawsuits to challenge laws or rules passed at any level of the government. When a case involves a claim of civil rights infringement, the judge has to decide on the level of scrutiny to apply to the case. Historically, cases involving any kind of racial discrimination automatically became subject to strict scrutiny. Issues like laws involving gender or sexual orientation tend to fall under heightened scrutiny; for example, Don't Ask Don't Tell, a law banning gay and lesbian service members from serving openly, was subject to this level of scrutiny because it involved discrimination on the basis of sexual orientation.
What Is the Heightened Scrutiny Test?
The heightened scrutiny test is applied when certain laws believed to be discriminatory are challenged. In this test, the government has to show at least two things. First, that the challenged law is substantially necessary to achieve an important objective of the government. Second, that the law goes about achieving the objective in a way that is closely related to its purpose. The judge in the case applies this test when evaluating the evidence presented.
For example, states have the right to set traffic laws and speed limits. These are designed to protect the public interest. However, a law that mandates extra traffic cameras for poor areas, or requires male drivers to carry a different level of insurance compared to female drivers, may violate constitutional rights and be subject to heightened scrutiny.
What Triggers Heightened Scrutiny?
Several types of legal challenges can result in intermediate scrutiny. These cases are considered more serious matters, but they may not directly violate a fundamental right of the constitution.
Heightened scrutiny is used for equal protection cases involving gender discrimination. This type of discrimination is when a person is treated differently because of being male or female. Gender is considered a protected class under the 14th Amendment.
When laws rely on gender stereotypes or apply to one gender and not another, they can be called into question and subjected to heightened scrutiny. For example, laws mandating a different minimum wage for men versus women would be a form of gender discrimination.
A different but similar situation involves sexual orientation, such as being gay or lesbian. Not all federal appeals courts or state courts apply this level of scrutiny to sexual orientation cases, but many do.
One example was a law that allowed prosecutors to remove jurors from a case solely based on sexual orientation. The 9th U.S. Circuit Court of Appeals found the practice unconstitutional and applied the standard of heightened scrutiny to the case. It’s important to note that the U.S. Supreme Court has not applied heightened scrutiny to any laws regarding sexual orientation, however.
Intermediate scrutiny is also used for cases involving children born outside of marriage. These are also known as illegitimacy cases. If a state law offered public education for all children, except those born out of wedlock, it would be a form of discrimination subject to heightened scrutiny.
Sometimes, this type of scrutiny is applied to cases involving the First Amendment. Usually, First Amendment cases require strict scrutiny, but when regulations are broader in scope and involve guidelines for entire industries, heightened scrutiny may be sufficient.
Who Is Subject to Heightened Scrutiny?
Heightened scrutiny applies to lawsuits against the government. Challenges can be made to laws passed by Congress, state legislatures and the federal government. Even executive orders signed by the president can be taken to court. In some cases, heightened scrutiny is also applied to discriminatory statutes and policies on the part of government agencies, such as the military.
In cases of heightened or intermediate scrutiny, the burden of proof rests with the government. It’s not the responsibility of the plaintiff to prove that laws violate constitutional rights, but instead the responsibility of the government to successfully defend challenges made against controversial laws.
The government also has a similar burden of proof in cases subject to strict scrutiny, the highest level of scrutiny applied. This is in contrast to rational basis reviews, the lowest level of scrutiny used. In a rational basis review, it’s the individual or organization bringing the challenge that must supply proof that the government violated the equal protection clause.