3 Levels of Scrutiny

Equal Protect has four equal parts. Once you’ve analyzed which amendment to apply, what class of people is alleging discrimination and whether the discrimination is facial or neutral, it’s time for step four. This step is where we determine whether the state or federal law satisfies any of the three levels of scrutiny.

Here’s how it works. When a court decides whether a federal or state law violates the Constitution it applies any one of three tests. We call these tests the three levels scrutiny. The three levels of scrutiny are strict scrutiny, intermediate scrutiny and rational basis.

Whether strict, intermediate or rational here is what the test is looking for. The purpose of the test is to determine if the law is constitutional or unconstitutional. Every law consists of three components: (1) the class it regulates (2) the goal of the law and (3) the method or means by which the law achieves its goal or purpose.

Let’s look at each component separately. Depending on the class being regulated, the Court will use a hard test like strict scrutiny for a suspect class or group (i.e. latino women) or an easier test like rational basis for a non-suspect class or group (i.e. elderly or disabled). Identifying whether the class is suspect or non-suspect helps to determine which level of scrutiny to apply. You will usually apply at least two tests because each party has their preferred test based on the outcome they desire.

Now let’s look at the second component. Again, a federal or state law has a goal. If the Court looks through the lens of strict scrutiny then the goal of the law must be to satisfy a compelling interest. This is such a hard test to meet that not even the U.S. war with Japan was considered a compelling enough reason to justify placing Japanese Americans in internment camps. Also, this test favors challengers because the burden of proof is on the government and not the challenger.

Of course the government would prefer that the Court examine their goal through the softer lens of the rational basis test. Under this test, government’s reason for creating the camps would be enough to meet constitutional scrutiny if it were only rationally related to a legitimate end such as protecting public safety.

Then there’s intermediate scrutiny. If the Court were to apply the intermediate scrutiny test then the goal of the law must be substantially related to an important government end. An important government end is something more than a mere legitimate end but still not as stringent as compelling end required under strict scrutiny.

So, let’s look at the third component. The same as you must take steps to achieve a goal, a state or federal law must have means to achieve its end. Under Equal Protection, the means of a state or federal law must also satisfy any three of the applicable level of scrutiny tests.

Let’s say that you have a state or federal law and its purpose or goal is to prevent terrorism. The method that the law uses to achieve its end goal is called the “means”. The means of a federal or state law to reduce terror attacks may be narrowly focused on that end-goal if it required all people to go through a security checkpoint screening. On the other hand, the means of the law may be too broad and under-inclusive if it were to only require Muslim and Arab people to go through a checkpoint screening. The reason is because a law targeting people on the basis of race or religion paints with too broad a brush whereas a law that requires everyone to be screened is narrowly focused on the issue of terrorism and not the race or religion of people.

If Muslim Americans sued on the basis of this law being discriminatory they would want the Court to look at the facts through the lens of strict scrutiny because it would require that the checkpoint screening means be more narrow and that there be no less discriminatory alternative. Since screening all people would be less discriminatory than screening only Muslims this law would certainly fail strict scrutiny.

Of course, if this law were put in place by the state or federal government they would prefer that it be subject to the lower scrutiny of the rational basis test. Unlike strict scrutiny, the lower rational basis test standard would be more easily satisfied since the means of the checkpoint screening is based on a legitimate purpose such as protecting public safety. The government also prefers this lens because the burden of proof is on the challenger.

Lastly, if intermediate scrutiny were applied then the checkpoint screening means of preventing terrorism would have to be substantially related to an important government interest. The intermediate test is a bit more lenient than strict scrutiny since under strict scrutiny there must be absolutely no less discriminatory alternative. Also, finding an important government interest for the screening is easier than finding a necessary and compelling government interest. Although not as tough as strict scrutiny challengers still prefer this lens because, like strict scrutiny, the burden of proof is still on the government.

Here’s the big picture. On an equal protection outline or exam question your role is to:

1. Figure out whether to apply the 14th amendment or 5th Amendment based on whether action is being taken by the federal or state government

1. Determine whether the state or federal law is discriminatory against a suspect class or a non-suspect class.

1. Examine whether the discriminatory law is facially discriminatory, facially neutral or facially neutral with a discriminatory impact and purpose.

2. Make arguments as to whether the means and purpose of the federal or state law satisfy the various tests for the levels of scrutiny.

That’s Equal Protection. Now that you have this systematic approach get an early start outlining and taking practice exams.