Intermediate scrutiny is a test courts often use in the field of Constitutional Law to determine a statute's constitutionality. Intermediate scrutiny is only invoked when a state or the federal government passes a statute which discriminates against, negatively affects, or creates some kind of classification affecting certain protected classes (this is described in further detail in the next section). To pass intermediate scrutiny, the challenged law must:
- further an important government interest (lower burden than compelling state interest required by strict scrutiny test)
- and must do so by means that are substantially related to that interest.
As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than the rational basis test. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.
Courts will sometimes refer to intermediate scrutiny by other names, such as "heightened scrutiny," or as "rational basis with bite." When referred to by these names, courts will typically use the same two prongs used for intermediate scrutiny.
The Supreme Court has ruled in multiple cases what constitutes an important government interest and therefore satisfies the first prong of intermediate scrutiny. The following list contains some examples of cases in which the Court has acknowledged that certain state actions qualify as an important government interest within the meaning of the first prong of intermediate scrutiny:
- Prevention of teenage pregnancy (Michael M. case)
- Public health (Craig v. Boren)
- National defense (Rostker v. Goldberg)
- Physical safety of women (Dothard v. Rawlinson)
- Insurance of biological relationship between US parent and child (Nguyen v. INS)
- Development of meaningful parental relationship to pass on citizenship values (Nguyen)
- Remediation of past societal discrimination (Califano v. Goldfarb)
The following list contains examples of cases in which the Court has ruled that the purpose behind the state action at issue did not satisfy the important government interest prong of the intermediate scrutiny test:
- Preservation of female chastity (Michael M. case)
- Diversity through single-sex education (U.S. v. Virginia (VMI Case))
- Administrative convenience (Rostker v. Goldberg)
- An educational affirmative action remedy where the gender that benefits from the affirmative action did not suffer disadvantage in relation to the classification (Mississippi Univ. for Women v. Hogan: educational Affirmative Action for women in Nursing School is not an important government interest because women have not historically faced discrimination in accessing the nursing profession)
The Supreme Court created the intermediate scrutiny test in Craig v. Boren (1976). In Craig, the Court created the intermediate scrutiny test and applied it to a statute which discriminated on the basis of gender. Since then, courts have found that gender is a protected class, and any statute which discriminates on the basis of gender must undergo the intermediate scrutiny test.
Another important point in the formulation of intermediate scrutiny came in the landmark case of U.S. v. Virginia in 1996, also sometimes known as the VMI (Virginia Military Institute) case. After the Court ruled on this case, the state’s burden of proving an important governmental interest behind its proposed gender classification grew even higher. The state must provide an exceedingly persuasive justification, which must be the true purpose, not one hypothesized or invented post hoc in response to litigation, and the justification cannot be based on overbroad generalizations about the different talents, capacities and preferences of men and women. Before this case, courts were typically only allowed to analyze the stated purpose the state gave for its gender classification, whereas now courts will determine whether the state’s stated purpose is the true purpose behind the classification. Finally, the VMI case added that for the gender classification to be substantially related to the government interest/purpose, it cannot create or perpetuate legal, economic or social inferiority of women.
In addition to statutes which discriminate based on gender, statutes which discriminate based on illegitimacy (i.e. children born out of wedlock) are also subject to intermediate scrutiny, according to Matthews v. Lucas, 427 U.S. 495 (1976) and Trimble v. Gordon, 430 U.S. 762 (1976). These cases may also refer to the level of scrutiny as "elevated scrutiny" or "realm of less than strictest scrutiny).
The First Amendment
Courts have also held that intermediate scrutiny is the appropriate standard for certain First Amendment issues. Below are a few First Amendment issues dealing with speech for which courts have used intermediate scrutiny.
Regulating Mass Media
In US West, Inc. v. United States (1994), the Ninth Circuit Court of Appeals used intermediate scrutiny for a federal statute which prohibited telephone companies from providing video programming to subscribers.
The US West Court held that in order to pass the first prong (important government interest prong) of intermediate scrutiny for a First Amendment issue, the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”
The court in US West also held that for the government to pass the second prong (means test) of intermediate scrutiny for a First Amendment issue, the regulation must leave open "ample alternative channels of communication."
Regulating Adult Entertainment
In Am. Library Ass'n v. Reno (1994), the court applied intermediate scrutiny to a statute which required "producers of materials depicting sexually explicit acts to maintain certain records documenting the names and ages of the persons portrayed and to attach statements to the materials indicating where the records are located." The court found that if the regulation was related to the content of the speech of the individual materials, then strict scrutiny would apply. But because the government was regulating the broad category of adult videos without regard for the content of any particular video (i.e. "content-neutral regulations"), the court found intermediate scrutiny to be the proper scrutiny here.
In MD II Entertainment, Inc. v. Dallas (1994), there was a city ordinance which regulated topless bars and similar establishments by establishing zoning restrictions specific to these sort of adult entertainment establishments. The court held that because this statute "govern[s] content-neutral regulations of commercial speech," intermediate scrutiny is the appropriate test to use.
Regulating Highway Signs
In Rappa v. New Castle County (1994), the court held that intermediate scrutiny is the appropriate standard for a government statute which requires certain "[d]irectional or warning signs and official signs or notices, danger and precautionary signs that relate to the premises, and signs or notices of a railroad, other transportation, or communication company that are necessary for the direction, information, or safety of the public . . . [T]he state's interest in these signs is greater than the [opposing] aesthetic and safety interests in banning these signs, and the exemption is narrowly tailored to serve the state interest."
[Last updated in June of 2023 by the Wex Definitions Team]