Equal Protection Standards of Review

1.  Minimum Scrutiny

In equal protection analysis this standard requires the challenger to prove that the use of the classification is not rationally related to a legitimate governmental interest.

By contrast, this same standard in due process analysis requires the challenger to prove that the means are not rationally related to a legitimate governmental interest.

Equal Protection Minimum Scrutiny: Is the use of the classification rationally related to a legitimate governmental interest?
Due Process Minimum Scrutiny: Are the means rationally related to a legitimate governmental interest?

2.  Intermediate Scrutiny

Is the use of the classification substantially related to the accomplishment of an important governmental interest?

This test requires that the government prove that the use of the classification is substantially related to the accomplishment of an important governmental objective so that it is neither substantially overinclusive nor substantially underinclusive, but it does not require that the use of the classification be absolutely necessary to the accomplishment of the objective.

3.  Strict Scrutiny

Is the use of the classification narrowly tailored to accomplish a compelling governmental interest?

Narrowly tailored under this test means the government must prove that it cannot achieve its compelling objective without the use of the classification. In other words, that there is no less discriminatory classification that the government can employ in order to achieve its compelling objective. Alternative classifications can be ones that don't employ the suspect trait at all as well as classifications that employ the trait, but to a lesser extent. Sometimes the phrase narrowly tailored is used and sometimes the word necessary is used, but in the context of strict scrutiny narrowly tailored means necessary.

4.  What Standard Applies?

To decide what standard applies, a court will analyze the basis for the discrimination to decide if discrimination against the members of the class should be treated as a suspect classification, a quasi-suspect classification or a nonsuspect classification. This analysis evaluates whether the classification has a sufficient number of the traits associated with a suspect classification. A list of 5 questions to ask, questions that focus on 5 characteristics of a suspect class, can be derived from past cases:

(1) has the group singled out suffered from a history of discrimination;
(2) does the trait generally bear no relationship to a person's ability to contribute to society;
(3) is the trait often singled out to reinforce prejudice against the group or label the group as inferior;
(4) is the group politically powerless by its numbers in the population, by under-representation in government, or by its inability to influence the legislative agenda; and
(5) is the trait shared by the group a distinct trait and one over which its members have no control, an immutable or unalterable characteristic, or a trait that is central to personal identity.
 
Groups that share some, but not all, of these characteristics may be quasi-suspect (like gender) and discrimination against them may merit intermediate scrutiny review. Realistically, quasi-suspect status is the most a challenger can hope to achieve out of this analysis since the Court has shown itself to be unwilling to add to the category of fully suspect classes.