Constitutional Law
Aug. 15, 2003
In the Balance
Forum Column - By Erwin Chemerinsky - Every law student learns that the outcome of constitutional cases concerning individual liberties and civil rights depends on the level of scrutiny used by the court. Three decades ago, Stanford law professor Gerald Gunther wrote that strict scrutiny usually is "fatal in fact," while the government almost always wins under rational-basis review.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
Every law student learns that the outcome of constitutional cases concerning individual liberties and civil rights depends on the level of scrutiny used by the court. Three decades ago, Stanford law professor Gerald Gunther wrote that strict scrutiny usually is "fatal in fact," while the government almost always wins under rational-basis review.
An interesting aspect of the recent U.S. Supreme Court term was the court's failure to use these levels of scrutiny in some of the most important decisions. The court has not abandoned the tiers of review; in some cases, the court invoked and applied the levels of scrutiny. But the court's failure to articulate the level of scrutiny in several key decisions leaves it open to criticism because of the lack of guidance for future cases that it provided to lower courts and litigants.
If these decisions are the beginning of a trend, the lessened importance of the levels of scrutiny is very undesirable unless the court replaces them with a clear set of criteria for how courts should evaluate the government's interest in specific cases.
One of the term's most important cases was Lawrence v. Texas, 123 S.Ct. 2472 (2003), in which the court declared unconstitutional a Texas statute prohibiting private, consensual homosexual activity. Justice Anthony Kennedy wrote an eloquent opinion overruling Bowers v. Hardwick, 478 U.S. 186 (1986), and holding that the right to privacy protects sexual activity by adults in their own bedrooms.
The puzzle posed by Lawrence is that the court did not identify the level of scrutiny that it was using. At no point does Kennedy indicate whether the court is using strict scrutiny, intermediate scrutiny or rational-basis review.
Some of Kennedy's language suggests that the court found that the right implicated was a fundamental right and, hence, implicitly used strict scrutiny.
He wrote, "The petitioners are entitled to respect for their private lives. ... Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."
Moreover, the rejection of morality as a justification for the statute indicates heightened scrutiny. Under Supreme Court precedent, morality is a "legitimate" interest sufficient to meet rational-basis review but not a compelling interest sufficient to fulfill strict scrutiny.
Texas defended its law by claiming that it made a moral judgment against homosexual activity. The court's rejection of this claim is consistent with intermediate or strict scrutiny but not the rational-basis test.
Other language in Kennedy's opinion, however, suggests that the court was using rational-basis review.
Kennedy stated, "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private lives of individuals."
Saying that the statute furthers no "legitimate" interest is synonymous with saying that the law fails rational-basis review.
Also, Kennedy invoked Romer v. Evans, 517 U.S. 620 (1996), in which the court used rational-basis review to invalidate a Colorado initiative that repealed all laws protecting gays and lesbians from discrimination and precluded the enactment of any such new laws.
Although many may applaud the Lawrence court for overruling Bowers and protecting the right of same-sex couples to engage in sexual activity, they also should criticize the court for failing to articulate its level of scrutiny.
After Lawrence, a plethora of legal challenges to laws that regulate private, consensual sexual conduct will arise. Challenges to laws prohibiting prostitution, adultery and same-sex marriage surely will emerge. Any court hearing such a challenge must ask what level of scrutiny it should use.
Seeing how such laws could meet strict scrutiny and seeing why the laws are not efforts by the state to impermissibly regulate what adults do in their own bedrooms is difficult. On the other hand, such laws might meet rational-basis review, especially if the court clarifies when moral interests are sufficient.
Lawrence was not the only case that failed to identify the level of scrutiny used. For example, the court decided six cases involving the First Amendment. In only one, Federal Election Commission v. Beaumont, 123 S.Ct. 2300 (2003), did the court articulate the level of scrutiny.
In upholding a federal law prohibiting corporations, including nonprofit advocacy corporations, from donating money to candidates, the court held that such restrictions only need to meet intermediate scrutiny. Interestingly, the identification of the level of scrutiny seemed incidental to the decision; Justice David Souter's opinion had upheld the law restricting corporate campaign contributions based on historical practice and policy arguments.
In none of the other free-speech cases did the court discuss the level of scrutiny. See Eldred v. Aschcroft, 123 S.Ct. 769 (2002) (upholding extension of copyrights and rejecting First Amendment challenge); Virginia v. Black, 123 S.Ct. 1536 (2003) (holding that cross burning cannot always be prohibited but that cross burnings that amount to true threats, done with intent to intimidate, can be punished); Madigan v. Telemarketing Assocs., 123 S.Ct. 1209 (2003) (concluding that states may bring fraud suits against fund-raisers who misrepresent amount of money that will go to charity); United States v. American Library Ass'n Inc., 123 S.Ct. 2297 (2003) (rejecting facial challenge to federal law requiring libraries that receive federal funds to install Internet filters on computers); Virginia v. Hicks, 123 S.Ct. 2191 (2003) (rejecting overbreadth challenge to law closing street to the public).
No justification exists for the court's failure to identify its level of scrutiny in these cases; many, if not all, of the decisions implicitly depend on the standard of review used by the court.
I certainly do not mean by this criticism to suggest that the court has abandoned the levels of scrutiny. In Grutter v. Bollinger, 123 S.Ct. 2325 (2003), in considering the University of Michigan Law School's affirmative-action program, Justice Sandra Day O'Connor's majority opinion began by expressly declaring that strict scrutiny had to be satisfied because the government was using race in its decision.
Kennedy, in dissent, argued that the majority's deference to the state was inconsistent with strict scrutiny, although O'Connor explicitly applied strict scrutiny and found that diversity was a compelling interest and that the program was "narrowly tailored" to achieving its goal.
More subtly, in Nevada Department of Human Resources v. Hibbs, 123 S.Ct. 1972 (2003), the court relied heavily on the levels of scrutiny in determining when state governments may be sued under federal laws. The court ruled that state governments may be sued under the Family and Medical Leave Act because the law was a valid exercise of Congress' power under the 14th Amendment.
Hibbs distinguished earlier cases holding that state governments cannot be sued under the Age Discrimination in Employment Act (Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)) and Title I of the Americans with Disabilities Act (Board of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001)).
The Hibbs court said that age and disability discrimination receive only rational-basis review. In contrast, the Family and Medical Leave Act was meant to prevent and remedy gender discrimination, which receives intermediate scrutiny. Thus, the type of discrimination and the level of scrutiny likely will be crucial in determining which laws can be used to sue state governments.
Every case involving individual rights ultimately entails balancing the harm to liberty against the government's justification for action. The levels of scrutiny are instructions for how courts should place weights on the scale; under rational-basis review, the scale favors the government, while under strict scrutiny, the government has great difficulty prevailing.
Certainly, nothing about the three tiers of review is magical. Some justices and commentators have called for abandonment of the rigid levels of scrutiny in favor of a more nuanced balancing approach. But this would require that the court expressly articulate the factors to be considered and balanced and how the weighing is to be done, something that the court never has done.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California.
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