Boom! Lawyered: Levels of Judicial Scrutiny Edition

It’s a timely topic, considering HB 2, the anti-LGBTQ law that bigots in North Carolina passed last week.

The idea of levels of judicial scrutiny came from a footnote in a 1938 U.S. Supreme Court case about milk, of all things.

Hello fellow law nerds! We are back with another edition of Boom! Lawyered.

This week’s round may be a bit more academic than the prior weeks, but if you hang in there with us, everything will make sense by the end. And even if it doesn’t, you’ll have gotten through an article about a tricky concept and you can go grab a nice cold beer, if you’re into that sort of thing.

This week, we’re going to talk about levels of judicial scrutiny for equal protection cases. It’s a timely topic, considering HB 2, the anti-LGBTQ law that bigots in North Carolina passed last week. You may have heard level-headed folks talk about how “wildly unconstitutional” HB 2 is. But did you know why?

The U.S. Constitution sets out the basic idea that all of us, even the bigots, have equal rights. The equal protection provisions of the Fifth and 14th Amendments require, generally, that the law treat every person in this country equally. But sometimes a government has a really good reason for treating people unequally.

With drinking, for example, states have decided that 21-year-olds are mature enough to drink and handle the responsibility that goes along with that, while 18-year-olds are not. This is not because the state bears some ill will toward 18-year-olds and wants to screw them out of a chance to get wasted and pass out in a ditch. Rather, the state has legitimate reasons to prevent 18-year-olds from drinking, like reducing the number of drunk-driving accidents. Whatever the reason is, it’s not based on some animus toward 18-year-olds.

A law that says men need only be 18 years old to drink, but women have to be 21 years old before they can, because women are weaker and can’t hold their liquor, would be a different story: That is a law based on gender stereotyping. How would a court figure out whether such a law is constitutional or not? By using one of three levels of “judicial scrutiny.”

Judicial scrutiny is the legal term to describe just how hard a court is supposed to look at and second-guess a law when it is deciding whether it is constitutional. You’ve likely heard that there are three levels of scrutiny used by courts to evaluate the constitutionality of laws: rational basis review, intermediate scrutiny, and strict scrutiny. You probably know that any law that classifies people according to their race is subject to strict scrutiny. Maybe you know that laws that make classifications based on gender are subject to intermediate scrutiny. Perhaps you know that rational basis review is the easiest standard to surpass. And beyond that, you likely get confused, your eyes glaze over, and you decide to take a nap.

Don’t fret, my friend. #TeamLegal is here to sort you out.

Let’s start at the beginning by discussing where the idea of “heightened scrutiny”—that is, any examination more thorough than the rational basis review—came from in the first place.

It came from a footnote in a 1938 U.S. Supreme Court case about milk, of all things.

But the subject matter of the case, United States v. Carolene Products Co., is less important than the footnote, which became one of the most important footnotes in all of constitutional law.

In that footnote, Footnote Four, Justice Harlan Stone wrote that the legislation at issue—a statute passed by Congress that prohibited certain milk products from being shipped in interstate commerce—was “presumptively constitutional” and therefore warranted only minimal scrutiny. In other words, the people complaining about the law would have had to come up with one helluva reason for why it wasn’t constitutional.

U.S. v. Carolene Products set the stage for the rational review test, which says that the law must be rationally related to a legitimate end. This is a very easy standard to meet. When applying rational review, judges basically look at the law and go, “Meh. Whatever.”

In that case, people complaining about the milk law lost. There was a rational basis for the law: Congress thought fake milk products were bad for your health, and the law banning their shipment was rationally related to the legitimate end of keeping Americans from ingesting fake milk products.

But then Stone dropped a footnote that would change the course of equal protection jurisprudence.

He went on to muse that there might be some statutes that would be subject to a higher level of judicial scrutiny, if those laws violated the Constitution on their face; if the laws rigged the political process that would be expected to prevent the enactment of the offensive law in the first place—like if they prevented people from voting; or if the law targeted what he called “discrete and insular minorities,” those individuals who were excluded from the political process because of prejudice and therefore could not protect themselves from enactments of discriminatory laws by the majority.

Over the next 40 years, the three levels of scrutiny would emerge.

Rational basis review, which, we’ve discussed already, means the law must be rationally related to a legitimate end. It is the level of review that the Court uses when there are no fundamental rights—like those you find in the Bill of Rights—or suspect classes involved in the case. The right to a minimum level of welfare, housing, and education, for example, is not a fundamental right, and that often surprises people. But you don’t have a right not to be poor. If you want that, maybe try moving to Scandinavia—Nordic countries have a strong welfare state.

What’s a suspect class, you ask?

A suspect class is those aforementioned “discrete and insular minorities”: a class of people who have historically been subjected to discrimination, comprise a discrete minority (meaning there aren’t a lot of them, percentage-wise), and have immutable characteristics (meaning characteristics that cannot be changed). Suspect classifications include race and national origin, along with religion, which the Court has always recognized as such due to religious persecution—after all, our country’s founders were hot-stepping it out of England to escape religious persecution.

It is important that laws targeting suspect classes be subject to heightened scrutiny in order to protect a tyrannical majority from screwing over that “discrete and insular minority.”

If a law discriminates or classifies individuals on the basis of any of these characteristics, or if the law burdens a fundamental right, like your First Amendment right to free speech, the courts will use strict scrutiny in determining whether or not it is constitutional. This means the law must promote a compelling government interest and be narrowly tailored to achieve that interest. Strict scrutiny is the toughest look a court can give a law.

The most common use of strict scrutiny is to strike down racial classifications that disadvantage “racial minorities.” I say usually because we mustn’t forget one of the Supreme Court’s most embarrassing moments—its 1944 ruling in Korematsu v. United States, where it applied strict scrutiny and nonetheless thought tossing 120,000 Japanese people into interment camps was just a swell idea. (Thanks, FDR!)

Korematsu was actually the first time the Supreme Court articulated the strict scrutiny standard and boy howdy, did the Court manage to royally fuck that up. It is also the only case to uphold a law that discriminates based on race. (The U.S. government would later pay reparations for this massive mess.) Strict scrutiny was later used by the Court in landmark cases like Brown v. Board of Education, which ended school segregation, Loving v. Virginia, which struck down an anti-miscegenation law. The Court has also used it in religious freedom cases, such as Zubik v. Burwell, the birth control benefit case currently pending before the Supreme Court.

Then there’s intermediate scrutiny, which courts will use to review laws that discriminate against “quasi-suspect classes.” Only gender and illegitimacy of birth are quasi-suspect classifications.

Intermediate scrutiny means that the law must promote an important government interest and be substantially related to achieving that interest. This is a squishy standard: What the hell is “important” and how is it different from “compelling”? For that matter, what qualifies as being “substantially related”? The Court did not adopt this until 1976 in a case called Craig v. Boren, five years after it first said in Reed v. Reed that the equal protection clause in the 14th Amendment prohibits discrimination based on sex. Prior to 1976, courts used rational basis review for gender-based classifications. After adopting said squishy standards, for the next 40 years, courts have looked at claims of sex discrimination and, you guessed it, made a mess of things. This includes one particularly absurd ruling that says laws which prevent the performance of certain jobs while pregnant is not sex discrimination because the law applied equally to men and women.

But what about laws that discriminate against LGBTQ people, like the one the North Carolina governor recently signed that permits discrimination based on sexual orientation and prohibits trans people from using their preferred bathroom? If that law makes its way to the Supreme Court, what level of scrutiny will the Court use to review it?

Short answer: Who knows?

The Supreme Court hasn’t yet decided what to do with queer and trans people when it comes to equal protection. Most LGBTQ challenges are framed as gender discrimination cases, and the Supreme Court seems flummoxed as to how to deal with them. 

In Windsor v. United States (the precursor to United States v. Windsor, the landmark case that held that the Defense of Marriage Act (DOMA) was unconstitutional), the Second Circuit Court of Appeals held that “homosexual” people were a quasi-suspect class on the basis of four factors: (1) gay people have suffered a history of persecution; (2) sexual orientation has no relation to ability to contribute to society; (3) gay people are a discernible group; and (4) gay people remain politically weakened.

But when the U.S. Supreme Court took up the case, it invalidated DOMA without saying whether or not gay people are a quasi-suspect class.

Certainly LGBTQ people fit the bill of a suspect class, given the current wave of homophobia that has bakers refusing to bake cakes for gay customers, states like North Carolina passing laws forbidding LGBTQ anti-discrimination ordinances, and the panic that has seen the public generally freaking out over trans people wanting to use a bathroom that matches their gender preference.

The Supreme Court is going to have to make up its mind. And hopefully, the North Carolina law will wind its way up to the Supreme Court and force it to finally articulate just what level of judicial scrutiny applies when dealing with anti-LGBTQ laws. And hopefully, that level of scrutiny will be more than rational basis review’s “meh.”