Standards of Review

1.  Strict Scrutiny

Strict scrutiny requires that the government prove it has chosen a narrowly tailored means to achieve a compelling governmental objective. The means required under such a test are usually described as narrowly tailored and occasionally described as necessary, but the hallmark of strict scrutiny is that the government must choose the least restrictive means of achieving its compelling government objective.  Under this test, the burden is on the government to prove that it has a compelling objective and that there are no equally effective less restrictive alternative means available to achieve that objective.  In proving the existence of a compelling objective, the government cannot simply assert such an interest, it must show that the compelling objective is the real reason for its actions and that the objective actually is at risk if it refrains from regulation.

a.  Equal Protection Strict Scrutiny: Is the use of the classification necessary to accomplish a compelling governmental objective? (necessary under this test means that the objective cannot be achieved without the use of the classification) (sometimes the phrase narrowly tailored is used instead of necessary, but in the context of strict scrutiny narrowly tailored means necessary)
b.  Due Process Strict Scrutiny: Are the means narrowly tailored to accomplish a compelling governmental objective? (narrowly tailored - the means are necessary and there are no equally effective less restrictive alternative means available to accomplish the objective) (sometimes the word necessary is used instead of narrowly tailored, but in the context of strict scrutiny they mean the same thing)
 
2.  Intermediate Scrutiny

Intermediate scrutiny requires that the government prove it is acting to further an important or substantial government interest and that it has chosen a narrowly tailored means to achieve its important objective. To satisfy the requirement of narrow tailoring of the means employed under intermediate scrutiny, the government does not need to select the least restrictive means, as it does under strict scrutiny.  Instead, the government must show that the means are narrowly tailored in that there is a close fit between means and ends.  This can be shown by demonstrating that the means are not substantially broader than they need to be to protect the important government interest.  As one method of determining if the means employed are substantially broader than they need to be, courts will often examine available less restrictive alternatives even though the government is not required to choose the least restrictive alternative.

a.  Equal Protection Intermediate Scrutiny: Is the use of the classification substantially related to the accomplishment of an important governmental objective? (this test requires that the use of the classification be narrowly tailored to the accomplishment of an important governmental objective so that it is neither substantially overinclusive nor substantially underinclusive, but it does not require that it be absolutely necessary to the accomplishment of the objective).
b.  Due Process Intermediate Scrutiny: Are the means substantially related to the accomplishment of an important governmental objective? (this test does not require the least restrictive means but only a means that are a close fit to the government's objective and are not substantially broader than necessary to accomplish the important objective) (sometimes the phrase narrowly tailored is used instead of substantially related, but in the context of intermediate scrutiny narrowly tailored means substantially related) (Important Note: we did not read any cases in which the Court specifically applied intermediate scrutiny in the context of due process review although we did see the court talk about important rather than compelling objectives in Zablocki and we did see the Court use the phrase "rigorous review" when it didn't want to make clear whether it was using strict scrutiny or intermediate scrutiny since rigorous review can refer to either strict or intermediate scrutiny).

3.  Minimum Scrutiny

Minimum Scrutiny (also called rational basis review and minimum rationality review) is the least demanding level of scrutiny.  This standard requires that the challenger prove that the means employed by the government are not rationally related to any legitimate government interest.

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