6/20/2023 0 Comments Levels of judicial scrutiny![]() Windsor–the same case that the federal Supreme Court will hear this March–the U.S. In 2008, the California Supreme Court, in In re Marriage Cases, adopted a strict scrutiny standard to state laws that discriminate on the basis of sexual orientation. However, in recent years, lower courts have begun to employ their own scrutiny tests. Supreme Court has yet to issue a ruling that ascribes a level of scrutiny to questions of sexual orientation. ![]() Boren, the court also crafted a level of intermediate scrutiny–a presumption of unconstitutionality unless a law is “substantially related” to an “important” government interest–in cases of gender-based discrimination. In the years to follow, the court would declare that in addition to marriage, such issues as procreation, contraception, family relationships, and child rearing were classified as “fundamental,” all subject to the strict scrutiny standard for determining equal protection. The court’s invocation of “fundamental rights” here set the precedent for a new classification of protection. “Marriage,” he wrote, “is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the 14th Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” In Loving, the court affirmed that such an abridgement must be necessary to serve a compelling government interest.Īnd Warren went a step further. Writing for a unanimous bench, Warren made clear that any racial classification that compromised equal protection was to be held to the strictest level of scrutiny. In Loving, Chief Justice Earl Warren wrote, “at the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny…’ and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.” ![]() In Loving, the court took up the question of whether a Virginia anti-miscegenation law – preventing interracial marriage–violated the 14th Amendment’s Equal Protection Clause. Virginia (1967), the court applied this strict scrutiny standard to rule in favor of equal protection for the first time. More than two decades later, in Loving v. in the wake of Pearl Harbor–was deemed constitutional, here, the court sought to clarify the language of the Carolene decision to construct a heightened level of judicial scrutiny for equal protection cases dealing with issues of racial classification–what would become known as the “strict scrutiny test.” Though the state interest in Hirabayashi–the implementation of curfews for Japanese-Americans living in the U.S. ![]() Such legislation, wrote then-Chief Justice Harlan Stone, is inherently suspect, “by very nature, odious to a free people whose institutions are founded upon the doctrine of equality.” Such categorization continued Stone, writing to a unanimous bench, “would be controlling here, were it not for the fact that the danger of espionage and sabotage, in time of war or threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas.” United States, the Supreme Court applied the Carolene precedent to assert a presumed unconstitutionality in laws evoking race-based classifications. This famed footnote suggested the possibility of multiple levels of judicial scrutiny for the first time, the court acknowledged that there may exist specific categories of people whose protection interests outweigh the concerns of the government. Here, Stone implied a place in American jurisprudence for a more rigorous evaluation of constitutionality for controversies invoking the application of the 14th Amendment. “There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those in the first 10 amendments, which are deemed to be equally specific when held to be embraced within the 14th Amendment.”
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