Strict Scrutiny: Definition & Test

Instructor: Jessica Schubert

Jessica is a practicing attorney and has taught law and has a J.D. and LL.M.

After you finish this lesson, you will have an understanding of what constitutes strict scrutiny. Moreover, you will review the strict scrutiny test and gain a further understanding.

Definition

Imagine that Abe, a Native American, ingested peyote as part of a religious ritual. He was fired from his job as a result of using the peyote because his employer believed this constituted illegal drug use. The applicable law indicated that peyote was illegal. Later, Abe applied for unemployment benefits. However, the government denied the unemployment benefits on the basis that Abe used illegal drugs. Abe sues and after a legal battle, the Supreme Court upholds the law because the law did neither target a particular group, nor was the law aimed at the performance of a religious act. The Court applies a strict scrutiny test and finds that the law generally prohibited possession of peyote to all people.

The review of the law in this example represents a constitutional law test known as 'strict scrutiny.' Strict scrutiny is a standard of judicial review which is used in order to assess the constitutionality of a law. In other words, strict scrutiny is the standard of review. This standard of review is used when a person's individual rights are infringed upon (which means that one's Bill of Rights rights were violated). Moreover, strict scrutiny is used when laws involving suspect classifications are possibly being violated. Suspect classification is a law that impacts a class of individuals based upon race, national origin, sexual orientation, religion, poverty, and alienage. For instance, a law which applies to homosexuals only would be a law involving a suspect classification.

Test

The test for whether a law passes the strict scrutiny review is whether the law was passed to further a compelling governmental interest and whether the law is narrowly tailored to achieve the interest. In addition, the law must be the least restrictive way to achieve the compelling governmental interest. Now let's break this down into three parts.

A compelling governmental interest has not yet been defined. However, the court's decisions demonstrate that this interest must be necessary, such as in matters of national security or food and drug safety. An example of this interest would be the government's national security interest in providing airline screenings for airline passengers.

The law must also be narrowly tailored to achieve the goal of the government. This means that the law operates specifically to address the compelling interest. For instance, in the above example of airline screenings, a narrowly tailored law would mean that the law applies only to airline passengers, as opposed to everyone who visits the airport.

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