How to pass intermediate scrutiny?
Asked by: Edward Deckow | Last update: March 29, 2026Score: 4.3/5 (33 votes)
To pass intermediate scrutiny, a law must serve an important government interest, and the means used must be substantially related to achieving that interest, a standard requiring more than just a rational link but less than the "narrow tailoring" of strict scrutiny, often applied in gender discrimination and some First Amendment cases. The government needs an "exceedingly persuasive justification" for the law to survive, showing a close fit between the goal and the action.
Is intermediate scrutiny hard to pass?
As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than the rational basis test. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.
What triggers intermediate scrutiny?
Finally, there is a middle tier of review, intermediate scrutiny, where the government action must be substantially related to an important government objective. Intermediate scrutiny has typically been applied in cases where someone has been discriminated against because of their sex or gender.
How to survive strict scrutiny?
To satisfy the strict scrutiny standard, the law or policy must:
- be justified by a compelling governmental interest. ...
- be narrowly tailored to achieve that goal or interest.
What type of speech triggers strict scrutiny?
Typically, laws that regulate speech based on its content (i.e., its subject matter, topic, or viewpoint) receive strict scrutiny, except for regulations of commercial speech (e.g., product advertisements), which typically receive intermediate scrutiny.
When do courts apply Intermediate Scrutiny?
What speech isn't protected?
Speech not protected by the First Amendment generally falls into categories like incitement to imminent lawless action, true threats, obscenity, defamation (libel/slander), fighting words, fraud, child pornography, and speech integral to criminal conduct, though the lines can be narrow and context-dependent, with the bar for unprotected speech being very high. These exceptions don't apply to lies in general, which are usually protected, but do cover specific harmful falsehoods like fraud and defamation.
What is the burden of proof for strict scrutiny?
Content-based regulations are presumed unconstitutional, and under strict scrutiny the government has the burden of proving that: It has a compelling government interest in regulating the speech. The regulation is narrowly tailored to meet the compelling interest.
Which law is most likely to pass the strict scrutiny test?
The law that is most likely to pass the strict scrutiny test is a law that prevents people of specific background from moving into public housing.
What questions does the government need to answer when doing a strict scrutiny test?
When we apply strict scrutiny, we have to ask two questions. First, what's the government interest at stake? To satisfy strict scrutiny, it has to be "compelling." How do we know what's a compelling interest?
What is strict scrutiny for dummies?
Strict scrutiny is a form of judicial review that courts in the United States use to determine the constitutionality of government action that burdens a fundamental right or involves a suspect classification (including race, religion, national origin, and alienage).
Which of the following types of discrimination would call for intermediate scrutiny?
Intermediate scrutiny is primarily applied in cases involving equal protection challenges, particularly those related to gender discrimination and certain rights related to freedom of religion and expression.
How would one prove violations of equal protection to the courts?
To establish an Equal Protection violation, a plaintiff must prove purposeful discrimination directed at an identifiable or suspect class.
What is legitimacy under intermediate scrutiny?
Intermediate scrutiny: Intermediate scrutiny is the legal standard used certain specific areas to determine if a law is constitutional. It requires the government to prove the law serves an important government interest and that the law or action at issue is substantially related to achieving that interest.
What are examples of intermediate scrutiny?
For example the court applied similar exacting intermediate scrutiny when ruling on sex-based classifications in both J.E.B. v. Alabama (concerning specific strikes against male jurors during jury composition) and United States v. Virginia (concerning male-only admission to the Virginia Military Institute).
Who has the burden of proof in intermediate scrutiny?
The Court in Moody appeared to confirm that, generally speaking, the burden to demonstrate overbreadth rests with the challenger. By comparison, the strict and intermediate scrutiny tests require the government to prove that the challenged law is narrowly tailored to serve a compelling governmental interest.
What is the lowest level of scrutiny?
In contrast to strict scrutiny, rational basis is the most lenient test. For a law to be upheld under this test, it simply has to be “rationally related to a legitimate governmental interest” — meaning there must be a non-arbitrary relationship between the restriction and a reason the government has for imposing it.
How to pass strict scrutiny?
To pass the strict scrutiny test, a law must be narrowly tailored to serve a compelling government interest. The same test applies whether the racial classification aims to benefit or harm a racial group. Strict scrutiny also applies whether or not race is the only criteria used to classify.
Does intermediate scrutiny require narrow tailoring?
Intermediate scrutiny requires that the government prove it is acting to further an important or substantial government interest and that it has chosen a narrowly tailored means to achieve its important objective.
What is an example of a strict scrutiny case?
Utah v. Strieff is another example of the strict scrutiny standard being applied in a case involving search and seizure. In 2015 the United States Supreme Court ruled in the case of Utah v. Strieff that a police officer who arrests a person based on an invalid warrant does not violate the Fourth Amendment.
Which level of scrutiny must affirmative action?
-The Court decided that affirmative action policies must survive strict scrutiny.
What does the strict scrutiny test require that the government has __ interest?
Under strict scrutiny, the government must demonstrate that its action serves a compelling interest and that the means used to achieve this interest are narrowly tailored.
What is the strict scrutiny test due process?
A court usually applies strict scrutiny to government actions that affect fundamental rights, which means that the government must show that its action furthered a compelling interest and was narrowly tailored to achieve that interest.
What are examples of scrutiny?
Scrutiny examples involve close, critical examination, like a company's finances facing public scrutiny after a scandal, a scientific theory undergoing peer review, or a politician's past coming under media scrutiny before an election, highlighting how scrutiny involves intense inspection for mistakes or hidden details.
How do you determine who has the burden of proof?
In most cases, the burden of proof rests solely on the prosecution, negating the need for a defense of this kind. However, when exceptions arise and the burden of proof has been shifted to the defendant, they are required to establish a defense that bears an "air of reality".
How does the burden of proof differ under intermediate scrutiny and strict scrutiny Quizlet?
Under intermediate scrutiny, government must show that its classification scheme is rational and serves an important interest, while under strict scrutiny, the government has a greater burden to show the law has a "compelling state interest."