Intermediate Scrutiny
Intermediate scrutiny is the middle tier of equal protection review, and it applies to exactly two quasi-suspect classifications: classifications based on gender and classific
13. Equal Protection: Intermediate Scrutiny
Quasi-suspect government classifications based on gender and non-marital children are subject to intermediate scrutiny, meaning that they will be upheld only if they are substantially related to an important governmental interest.
- Government classifications based on gender or non-marital children are presumptively unconstitutional and subject to intermediate scrutiny. Clark v. Jeter, 486 U.S. 456 (1988) (nonmarital children); U.S. v. Virginia, 518 U.S. 515 (1996) (gender).
- To survive intermediate scrutiny, the government classification must be substantially related to an important governmental objective.
- Justifications for classifications based on gender must not rely on overbroad generalizations, stereotypes, or “tendencies” of males and females. U.S. v. Virginia, 581 U.S. 515, 541 (1996).
- Courts use heightened scrutiny for gender classifications whether they benefit men or women. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).
- In striking down laws that distinguish between marital and nonmarital children, the court has said that burdening a child for its birth status is illogical and unjust. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175–176 (1972).
Intermediate scrutiny applies to exactly two quasi-suspect classifications, gender and non-marital children. Both are presumptively unconstitutional, and the government must show the classification is substantially related to an important governmental objective.
Intermediate scrutiny is the middle tier of equal protection review, and it applies to exactly two quasi-suspect classifications: classifications based on gender and classifications based on non-marital (illegitimate) status of children. When the government draws a line using either of those traits, the line is presumptively unconstitutional and the government carries the burden of justifying it.
- 1The government must be pursuing an important governmental objective.
- 2The classification must be substantially related to that objective.
That is a real step up from rational basis, where the government only needs a legitimate interest and a rationally related means, but it is a step below strict scrutiny, where the interest must be compelling and the means narrowly tailored. For gender classifications there is a specific guardrail: the justification cannot rest on overbroad generalizations, stereotypes, or supposed tendencies of males and females. A reason that is just a dressed-up stereotype fails, even if it sounds practical. It also does not matter which sex the law favors. A law that benefits women and burdens men gets the same intermediate scrutiny as a law that does the reverse, so a court does not relax its review just because the classification looks protective. For non-marital children, the core idea is that punishing a child for the circumstances of its birth is illogical and unjust, so those classifications also draw intermediate scrutiny.
The traps in this area come from misnaming the tier. Importing strict scrutiny language like compelling interest or narrowly tailored onto a gender classification is wrong, and so is dropping to rational basis and asking only for a legitimate interest. Race, ethnicity, and national origin are suspect classifications that get strict scrutiny, not this tier, and traits like age, wealth, and disability get only rational basis. Keep those out of the intermediate-scrutiny box.
Two quasi-suspect lines only: gender and non-marital children.
The test is substantially related to an important governmental objective.
Not compelling, not narrowly tailored (that is strict scrutiny); not legitimate and rationally related (that is rational basis).
Two throwaway moves that lose: applying strict scrutiny to a gender or non-marital-child line, and applying rational basis to one.
Stereotypes about men and women never justify a gender line, and a law that favors women still gets the same intermediate review as one that favors men.
The government bears the burden, because these classifications start out presumptively unconstitutional.
A state agency runs a tuition-assistance program that pays a larger benefit to female applicants than to male applicants. The agency defends the difference by asserting that women are, on the whole, more likely to leave the workforce to raise children and therefore need more help returning to school. A male applicant who received the smaller benefit challenges the program under the Equal Protection Clause.
If a challenger argued the program had to be narrowly tailored to a compelling interest, that would be the strict-scrutiny standard, which is the wrong tier for a gender line.
An option applies strict-scrutiny language to a gender or non-marital-child line, asking whether the law is narrowly tailored to a compelling interest, or imports a race or national-origin frame.
Gender and non-marital-child classifications get intermediate scrutiny: substantially related to an important objective, not the compelling-interest and narrow-tailoring test reserved for suspect classifications.An option states the test as rationally related to a legitimate interest, or puts the burden of proof on the challenger, or adds a least-restrictive-means requirement.
The correct standard is substantial relationship to an important objective with the government bearing the burden; rational basis is too low and least-restrictive-means belongs to strict scrutiny.A choice resting on a true but immaterial fact, such as that the law favors women rather than men, that the objective sounds practical, or that the exclusion causes little harm.
Heightened scrutiny applies whether the law benefits men or women, and a stereotype-based or harmless-sounding justification still fails the substantial-relationship test.An absolute choice, such as that any law mentioning sex is automatically unconstitutional, or that the state's power to classify is never subject to review.
These classifications are presumptively unconstitutional but reviewed under intermediate scrutiny, which some lines survive; nothing here is automatic or beyond review.the stem hands you a government line drawn on the basis of sex or on whether a child was born to married parents, then loads it with sympathetic or practical-sounding justifications, often a generalization about what men or women tend to do, or a law framed as protecting women.
The instant you spot a gender or non-marital-child classification, set the tier to intermediate scrutiny: is the classification substantially related to an important governmental objective, with the government carrying the burden?
If the justification is really a stereotype about the sexes, it fails.
Watch for answer choices that misname the tier, either demanding a compelling interest and narrow tailoring (strict scrutiny, too high) or asking only for a legitimate interest and a rational relationship (rational basis, too low).
Both are wrong for these classifications.
A state agency administers a job-training program and limits enrollment in its welding track to male applicants, reasoning that physically demanding trades are better suited to men. A woman who was turned away from the welding track challenges the male-only rule under the Equal Protection Clause. The agency defends the rule as a sensible match between the work and the people it expects to do it.
Under existing precedent, is the male-only rule likely constitutional?
A state grants a special property-tax exemption to widows but denies the same exemption to widowers, on the theory that women who lose a spouse face greater financial hardship. A widower who was denied the exemption challenges the distinction under the Equal Protection Clause. The state argues that because the exemption helps women, a group the law is trying to protect, a court should review it leniently.
Under existing precedent, will a reviewing court apply only rational-basis review because the exemption favors women?
A state nursing college admits only women, and it defends the policy by asserting that nursing is traditionally women's work and that men in the classroom would distract the female students from their studies. A qualified man who was denied admission challenges the women-only policy under the Equal Protection Clause.
Under existing precedent, is the man's equal protection challenge likely to succeed?
A state probate statute lets a child born to married parents inherit from a deceased father by intestate succession but bars a child born outside marriage from inheriting from the same father even where paternity was openly acknowledged. A child born outside marriage who was excluded from her father's estate challenges the statute under the Equal Protection Clause.
Under existing precedent, is the child's equal protection challenge likely to succeed?
A state law makes it a crime for an adult to have sexual intercourse with a person under a set age, and the law punishes only the older male participant in such an encounter, not the younger female. A man prosecuted under the law challenges the sex-based distinction under the Equal Protection Clause, and a court must first identify the standard of review that governs his claim.
Under existing precedent, which standard should the court apply to the sex-based distinction?