When courts review whether a law violates the Constitution, they don't apply a one-size-fits-all test. Instead, judges use three different levels of scrutiny depending on what the law affects. The stricter the scrutiny, the harder it is for the government to justify the law.
The Three Levels of Scrutiny
1. Strict Scrutiny (Highest Standard)
This is the toughest test. Courts apply strict scrutiny when a law:
- Discriminates based on race, national origin, or religion
- Restricts a fundamental right (like voting, free speech, or privacy)
The Test:
The government must prove the law serves a compelling government interest and is narrowly tailored to achieve that goal.
Result: Most laws fail strict scrutiny. It's very hard for the government to win.
2. Intermediate Scrutiny (Middle Standard)
This middle-ground test applies when a law:
- Discriminates based on gender or sex
- Discriminates against non-marital children (illegitimacy)
The Test:
The government must prove the law serves an important government interest and is substantially related to achieving that goal.
Result: Some laws survive, but it's still a tough standard.
3. Rational Basis Review (Lowest Standard)
This is the easiest test for the government to pass. It applies to all other laws that don't trigger strict or intermediate scrutiny, such as:
- Economic regulations
- Age-based classifications
- Most general laws
The Test:
The law only needs to be rationally related to a legitimate government interest.
Result: Most laws pass rational basis review. Courts defer to legislatures.
Why This Matters
The level of scrutiny determines whether a law lives or dies. When lawyers challenge a law in court, their first goal is to convince the judge to apply strict scrutiny—because if they succeed, the government will likely lose. Understanding these standards helps you predict how courts will rule on controversial laws.
Real-World Example: United States v. Virginia (1996)
Virginia Military Institute (VMI) was a male-only state military college. When challenged for discriminating based on sex, the Supreme Court applied intermediate scrutiny.
🏛️ The Question:
Did Virginia have an important interest in maintaining a male-only school, and was excluding women substantially related to that interest?
⚖️ The Court's Decision:
The Court said no. Virginia's justifications were based on outdated stereotypes about women's abilities. VMI had to admit women or lose state funding. The school chose to admit women.
✅ The Lesson:
Even under intermediate scrutiny (the middle standard), gender-based discrimination is hard to justify without solid, non-stereotypical reasons.
Key Takeaways
Strict scrutiny applies to race discrimination and fundamental rights. The government almost always loses.
Intermediate scrutiny applies to gender discrimination. The government sometimes wins if the reason is legitimate and not based on stereotypes.
Rational basis applies to everything else. The government almost always wins.
The level of scrutiny is often the most important factor in determining whether a law is constitutional.