What is the Strict Scrutiny standard for Review of a law?

The Strict Scrutiny standard requires that a law affecting a fundamental right have a compelling state purpose to be constitutional. 

It also requires that the law be narrowly tailored to achieve the government purpose or interest.

What does the Strict Scrutiny standard require?

As stated above, the Strict Scrutiny standard requires that a law have a compelling state purpose to be constitutional. 

Further, the law in question must be narrowly tailored to achieve that purpose and must be the least restrictive means of achieving that purpose. 

This means that the government must make certain that the law is not overly broad in the type of conduct that it affects. 

Further, there must not be another method of achieving this purpose without infringing upon the affected individuals rights. 

Strict scrutiny is used if the classification involves a fundamental right under the Bill of Rights or under the Due Process Clause. 

It is also applied when a law or government action specifically affects a suspect class. 

That is, the law or action has a discriminatory effect based upon race, gender, religion, and national origin. 

• One of the earliest cases to employ the Strict Scrutiny standard or review was Skinner v. Oklahoma (1942). The case involved a law allowing for the sterilizing of a defendant on the bases of multiple commissions of crimes involving moral turpitude. The Court held that strict scrutiny must be applied when evaluating infringement of "a right which is basic to the perpetuation of a race".
•  The standard was raised again in Korematsu v. United States (1944) which involved the internment of US citizens of Japanese origin during World War II. 

Later cases continued to formalize this strict standard and included the elements that the law must be narrowly tailored to achieve a compelling government interest"). 

• Example: An example of applying the strict scrutiny standard to fundamental rights (Equal Protection) based upon race, is Loving v. Virginia (1967), where SCOTUS struck down a Virginia law banning interracial marriage.
• Practice Scenario: The state passes a law prohibiting individuals from burning the state flag. Burning a flag is a form of expression that is protected by the 1st Amendment. For this statute to be constitutional, it must achieve a compelling governmental purpose (within the states police power), be narrowly tailored to achieve that purpose, and be the least restrictive means of achieving that purpose. In this situation, there is likely no compelling purpose related to the states police power that justifies limiting an individuals 1st Amendment rights. As such, the state statute would likely be held unconstitutional.

Related Concepts

• What is Included in the US Constitution?
• What is the Commerce Clause?
• What is the Taxing and Spending Power?
• Standards for Constitutionality of Laws
• Minimum Rationality
• Intermediate Scrutiny (Quasi-Strict Scrutiny)
• What are Judicial Restraint vs Judicial Activism