Define: Intermediate Scrutiny

Intermediate scrutiny is a legal standard used by courts to evaluate the constitutionality of government actions or laws that potentially infringe upon certain rights. It requires the government to demonstrate that its actions or laws are substantially related to an important government interest.

Intermediate scrutiny is typically applied in cases involving laws or government actions that discriminate based on gender or illegitimacy. It is also used in cases involving restrictions on commercial speech.

Strict scrutiny is a higher standard than intermediate scrutiny. It is applied when a law or government action infringes upon a fundamental right or discriminates based on a suspect classification, such as race or national origin. Intermediate scrutiny requires a less rigorous analysis than strict scrutiny.

In applying intermediate scrutiny, courts consider whether the government’s action or law is substantially related to an important government interest. They also assess whether there are less restrictive alternatives available to achieve the government’s objective.

One example is the case of United States v. Virginia (1996), where the Supreme Court applied intermediate scrutiny to evaluate the constitutionality of the Virginia Military Institute’s male-only admissions policy. The Court found that the policy did not meet the intermediate scrutiny standard and violated the Equal Protection Clause.

If a law fails intermediate scrutiny, it is deemed unconstitutional and cannot be enforced. The court may strike down the law or require the government to modify it to meet the intermediate scrutiny standard.

While intermediate scrutiny is most commonly applied to cases involving gender discrimination, it can also be used in cases involving restrictions on commercial speech or laws that discriminate based on illegitimacy.

Rational basis review is the lowest level of scrutiny applied by courts. It requires the government to show that its action or law is rationally related to a legitimate government interest. Intermediate scrutiny requires a higher level of justification and a closer fit between the government’s objective and the means used to achieve it.

Currently, the Supreme Court has not definitively determined the level of scrutiny to be applied to laws that discriminate based on sexual orientation. However, some lower courts have applied intermediate scrutiny in such cases.

Yes, intermediate scrutiny can be used to challenge affirmative action programs that involve race or gender-based classifications. Courts will evaluate whether the program is substantially related to an important government interest and whether there are less restrictive alternatives available.