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In Law, What Is Strict Scrutiny?

Strict scrutiny is often employed by the Supreme Court of the United States when a state legislature passes a law that may be unconstitutional.
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  • Written By: Alexis W.
  • Edited By: Heather Bailey
  • Last Modified Date: 30 October 2014
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Strict scrutiny in legal terms refers to the toughest standard that a court will use to review a given law or a specific situation. Generally, this type of scrutiny is applied when the federal or state legislature passes a law that either potentially interferes with constitutional rights or when the legislature passes a rule that discriminates against a protected class. Strict scrutiny as a legal standard can apply in several other situations as well.

When strict scrutiny applies, the court will not permit a particular law or decision to exist unless it can meet a very tough burden. The exact burden that applies to strict scrutiny depends on the type of law or decision the court is looking at. In general, the standard is one alternative method of judicial review, with intermediate scrutiny as a less stringent standard.

This standard is commonly applied in constitutional law cases. For example, if the federal government attempts to pass a law limiting the type of language used on television, this law would have to pass strict scrutiny. This stringent standard is applied because the proposed law limiting language could be a potential violation of First Amendment rights in the US Constitution. Any law that limits or inhibits protections in the constitution is reviewed with strict scrutiny.

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Under this standard, the particular law must be narrowly tailored to serve a fundamental government purpose. Narrowly tailored means that the law is as specific as it possibly can be to serve the given purpose. If a different law would do the same thing and impinge less on constitutional rights, the law will not past the strict burden imposed by this standard.

The definition of fundamental government purpose means that the purpose must be important and must be appropriate. In other words, the government has a fundamental right to protect the safety of a person. Therefore, the government can pass a law stating that it is illegal to yell “fire” in a crowded theater because this serves the fundamental and important purpose of protecting the safety of those in the theater and because it is narrowly tailored and specific only to that given situation.

Strict scrutiny also applies in cases of discrimination under civil rights legislation in the United States. The Civil Rights Act of 1964 and various other pieces of civil rights legislation prohibit employers, public institutions and government officials from discriminating against a person on the basis of race, national origin, gender or religion. Therefore, if an employer makes a hiring decision that discriminates on the basis of gender, that decision is subject to strict scrutiny and is evaluated to ensure it serves a legitimate, bona fide occupational purpose.

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