Intermediate Scrutiny

Overview

Intermediate scrutiny is a test courts will use to determine a statute's constitutionality. Intermediate scrutiny is only invoked when a state or the federal government passes a statute which negatively affects certain protected classes (this is described in further detail in the next section). To pass intermediate scrutiny, the challenged law must:
  1. further an important government interest 
  2. 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.

Further 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. 

Origin

The Supreme Court created the Intermediate Scrutiny Test in Craig v. Boren, 429 U.S. 190 (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. 

Protected Classes

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 speechfor which courts have used intermediate scrutiny. 

Regulating Mass Media 

In US West, Inc. v. United States, 48 F.3d 1092 (9th Cir. 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 here 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 US West court 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, 33 F.3d 78 (D.C. Cir. 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, 28 F.3d 492 n. 21 (5th Cir. 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 Caste County, 18 F. 3d 1043 (3d Cir. 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." 

Further Reading

For more on intermediate scrutiny, see this Illinois Law Review article, this Harvard Law Review article, and this Indiana Law Journal article