What Are The Defenses To Intermediate Scrutiny in Constitutional Law?

Defenses to intermediate scrutiny often involve showing that the law serves an important governmental objective and that the means employed are substantially related to achieving that objective. A government may also argue that there are no less restrictive alternatives available.

Intermediate scrutiny is a standard of judicial review used in constitutional law that applies to certain classifications, primarily involving gender and legitimacy. Under this standard, the government must demonstrate that the challenged law or action is substantially related to an important governmental interest. One common defense against a challenge to a law under intermediate scrutiny is the assertion that the law addresses an important objective, such as promoting public safety or ensuring equitable treatment in certain contexts. For instance, laws designed to protect against domestic violence often invoke this rationale.

Another key defense focuses on the means employed to achieve the objective. Here, the government must show that there is a close fit between the classification and the purpose of the law, effectively articulating why the particular provisions of the law are necessary to achieve its goals. Defendants may argue that less restrictive alternatives could achieve the same ends, and the government must counter this by demonstrating that no viable alternatives exist that would be less burdensome on the affected class.

In the context of gender discrimination cases, for example, a law that differentiates based on gender might be defended by illustrating how it accounts for substantial physiological or social differences that justify the differential treatment. Courts often evaluate such defenses closely to ensure that the government’s justification meets the demanding requirements of intermediate scrutiny.

Moreover, the government can also defend its position by providing empirical data or studies that indicate the effectiveness of the legislation in achieving its stated goals. Such evidence can be critical in persuading courts to uphold the law against constitutional challenges. Ultimately, the burden of proof lies with the government to establish that the legislation serves important state interests and is substantially related to achieving those interests, differentiating intermediate scrutiny from the more lenient rational basis review standard.

For law students, understanding the nuances of successful defenses under intermediate scrutiny requires careful analysis of both the governmental interests involved and the empirical evidence presented in support of the law's efficacy.

• 1Craig v. Boren (1976) - Established the intermediate scrutiny standard for gender discrimination.
• 2United States v. Virginia (1996) - Invalidated the male-only admission policy at the Virginia Military Institute, applying intermediate scrutiny.
• 3Mississippi University for Women v. Hogan (1982) - Held that gender-based admission policies must meet intermediate scrutiny requirements.
• 4United States v. Windsor (2013) - While primarily concerning same-sex marriage, emphasized heightened scrutiny in gender-based classifications.

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