Intermediate Scrutiny
Intermediate scrutiny (heightened scrutiny) is the standard of judicial review applied to government classifications based on quasi-suspect classes — most importantly sex/gender and legitimacy. It falls between rational basis (lenient) and strict scrutiny (demanding). The government bears the burden of justification.
Elements
- Important government interest: the interest must be “important” — more than merely legitimate, but not necessarily “compelling”
- Substantial relation: the law must be substantially related to achieving that interest — not merely rationally related, but not the least restrictive means either; courts require an “exceedingly persuasive justification” for sex classifications (United States v. Virginia)
Triggers
Equal Protection — Intermediate scrutiny applies to:
- Sex/gender classifications: Craig v. Boren (1976) — established intermediate scrutiny for sex; United States v. Virginia (1996) — tightened to “exceedingly persuasive justification”
- Legitimacy classifications: laws disadvantaging non-marital children
First Amendment — Intermediate scrutiny applies to:
- Content-neutral speech restrictions (time, place, and manner regulations)
- The O’Brien test for laws targeting expressive conduct incidentally
”Exceedingly Persuasive Justification”
In United States v. Virginia (1996), the Court required an “exceedingly persuasive justification” for sex-based classifications — which is closer to strict scrutiny in practice. The government must demonstrate the classification does not merely reflect archaic or stereotypical notions about gender roles.
Laws justified solely by generalized gender stereotypes (women are better caregivers, men are the primary breadwinners) fail this standard.
Policy
- Sex classifications fall short of strict scrutiny because sex is not wholly immutable and some genuine biological differences may justify narrow distinctions
- But sex classifications were historically used to subordinate women, warranting more than mere rational basis
- “Exceedingly persuasive justification” language signals intermediate scrutiny for sex is genuinely demanding — not a paper standard
Key Cases
| Case | Rule |
|---|---|
| Craig v. Boren (1976) | Established intermediate scrutiny for sex classifications; Oklahoma beer law struck down |
| United States v. Virginia (1996) | VMI’s male-only admissions violated Equal Protection; sex classifications require “exceedingly persuasive justification” |
| Mississippi University for Women v. Hogan (1982) | Nursing school’s female-only policy struck down; stereotype-based justification insufficient |
| Rostker v. Goldberg (1981) | Male-only draft registration upheld; combat exclusion of women was an important interest |
| Nguyen v. INS (2001) | Immigration law treating children of citizen mothers and fathers differently upheld; genuine biological differences justified the distinction |