Hogan in 1982, the United States Supreme Court ruled that the burden is on the proponent of the discrimination to establish an 'exceedingly persuasive justification' for sex-based classification to be valid. 190 (1976), which was the first case in the United States Supreme Court which determined that statutory or administrative sex-based classifications were subject to an intermediate standard of judicial review. In the context of sex-based classifications, intermediate scrutiny applies to constitutional challenges of equal protection and discrimination.Īn example of a court using intermediate scrutiny came in Craig v. Judicially crafted ( common law) rules are also valid only if they conform to the requirements of Equal Protection. Equal Protection analysis also applies to both legislative and executive action regardless if the action is of a substantive or procedural nature. As the Fourteenth Amendment applies directly to the states, the incorporation process was unnecessary to hold this restriction against state and local governments. Although the Fourteenth Amendment's Equal Protection Clause applies only to state and local governments, the United States Supreme Court has implied an Equal Protection limitation on the federal government through a process known as ' reverse incorporation'. Laws subject to Equal Protection scrutiny Ĭonstitutional Equal Protection analysis applies not only to challenges against the federal government, but also to state and local governments. 1 Laws subject to Equal Protection scrutiny.This approach is most often employed in reviewing limits on commercial speech, content-neutral regulations of speech, and state actions discriminating on the basis of sex. Intermediate scrutiny may be contrasted with ' strict scrutiny', the higher standard of review that requires narrowly tailored and least restrictive means to further a compelling governmental interest, and ' rational basis review', a lower standard of review that requires the law or policy be rationally related to a legitimate government interest. In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest by means that are substantially related to that interest.

The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous). constitutional law, is the second level of deciding issues using judicial review.

3 levels of scrutiny