Legal Definitions - intermediate scrutiny

Intermediate scrutiny is a legal standard that courts use to evaluate whether a government law or action violates the U.S. Constitution. It sits in the middle of the three main levels of judicial review, being more rigorous than the "rational basis test" but less demanding than "strict scrutiny."

Courts apply intermediate scrutiny primarily in two situations:

• When a law treats people differently based on certain characteristics, known as "quasi-suspect classifications," such as gender or illegitimacy (being born outside of marriage).
• In some cases involving the First Amendment, particularly when the government regulates speech in a "content-neutral" way (meaning the regulation applies regardless of the message being conveyed, focusing instead on the time, place, or manner of speech).

For a law to pass intermediate scrutiny, the government must demonstrate two things:

1. The law must further an important government interest. This means the government's goal behind the law must be significant and not merely a matter of convenience or preference.
2. The means chosen by the government to achieve that interest must be substantially related to it. This requires a strong connection between the law's provisions and its stated goal, ensuring the law is not overly broad or arbitrary in how it achieves its purpose.

Examples of Intermediate Scrutiny

• Gender Classification: State University Scholarship Program

  Imagine a state university implements a scholarship program that automatically awards an additional $5,000 per year to female students pursuing degrees in engineering, but not to male students in the same field. A male student who believes this policy is discriminatory might challenge it in court.

  In this scenario, a court would likely apply intermediate scrutiny because the policy differentiates based on gender. The court would ask:

  • Is promoting women in historically male-dominated fields like engineering an important government interest? The university might argue it is, to address historical underrepresentation and promote diversity.
  • Is automatically granting larger scholarships to female students substantially related to achieving that interest? The court would examine if this specific method is well-tailored to the goal, or if it's too broad, creates unfair disadvantages, or if less discriminatory alternatives exist.
• Illegitimacy: Inheritance Law

  Consider a state law that allows children born within a marriage to automatically inherit from their father's estate, but requires children born outside of marriage to establish paternity through a court order within six months of the father's death to be eligible for inheritance.

  If a child born outside of marriage misses this strict deadline and is subsequently denied inheritance, they might challenge the law. Intermediate scrutiny would be applied because the law treats children differently based on their birth status (illegitimacy). The court would assess:

  • Does the state have an important government interest in ensuring orderly estate administration and preventing fraudulent claims? This is generally recognized as important.
  • Is requiring children born outside of marriage to prove paternity within a very short, specific timeframe substantially related to that interest? The court would scrutinize whether such a strict deadline is truly necessary and fair, or if it places an undue burden on a specific group without a strong enough justification.
• First Amendment: City Noise Ordinance

  A city passes an ordinance prohibiting all amplified sound in public parks between 9 PM and 7 AM, regardless of the message being conveyed. A community group planning a late-night protest with amplified speeches challenges the ordinance, arguing it restricts their freedom of speech.

  This is a content-neutral regulation of speech (it regulates the "manner" of speech, not its "content"), so intermediate scrutiny would apply. The court would evaluate:

  • Does the city have an important government interest in ensuring peace and quiet for nearby residents during nighttime hours and protecting public safety? This is generally considered an important interest.
  • Is a blanket ban on all amplified sound during those hours substantially related to achieving that interest? The court would consider if the ban is narrowly tailored to address the noise concerns without unnecessarily restricting speech, and if it leaves open ample alternative channels for communication (e.g., allowing unamplified speech, or amplified speech at other times).