Tuck this away somewhere. We will discuss this further when we get to civil liberties and what justifies unequal treatment before the law.
- Rational Basis Review:
Rational basis review tests whether the government's actions are "rationally related" to a "legitimate" government interest. The Supreme Court has never set forth standards for determining what constitutes a legitimate government interest. Under rational basis review, it is "entirely irrelevant" what end the government is actually seeking and statutes can be based on "rational speculation unsupported by evidence or empirical data." Rather, if the court can merely hypothesize a "legitimate" interest served by the challenged action, it will withstand rational basis review. Judges following the Supreme Court's instructions understand themselves to be "obligated to seek out other conceivable reasons for validating" challenged laws if the government is unable to justify its own policies.
- Intermediate Review:
In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest by means that are substantially related to that interest.
. . . In the context of sex-based classifications, intermediate scrutiny applies to constitutional challenges of equal protection and discrimination.
An example of a court using intermediate scrutiny came in Craig v. Boren, 429 U.S. 190 (1976), which was the first case in the United States Supreme Court which determined that statutory or administrative sex-based classifications were subject to an intermediate standard of judicial review.[4]
In Mississippi University for Women v. Hogan in 1982, the United States Supreme Court ruled that the burden is on the proponent of the discrimination to establish an "exceedingly persuasive justification" for sex-based classification to be valid. As such, the court applied intermediate scrutiny in a way that is closer to strict scrutiny and in recent decisions the Court has preferred the term "exacting scrutiny" when referring to the intermediate level of Equal Protection analysis. 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).
- Strict Scrutiny:
In American constitutional law, strict scrutiny is the highest and most stringent standard of judicial review, and results in a judge striking down a law unless the government can demonstrate in court that a law or regulation:
- is "narrowly tailored" to achieving this compelling purpose; and
- uses the "least restrictive means" to achieve the purpose.
U.S. courts apply the strict scrutiny standard in two contexts: when a fundamental constitutional right is infringed,[1] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification", such as race or national origin.
