Intermediate Scrutiny

Intermediate scrutiny occupies the middle tier of the three-level framework courts use to evaluate equal protection challenges. It applies primarily to classifications based on gender and illegitimacy — quasi-suspect classifications that do not trigger strict scrutiny but warrant more searching review than rational basis.

Under intermediate scrutiny, the government must demonstrate that the challenged classification serves an important governmental objective and that the means chosen are substantially related to achieving that objective. The justification must be genuine, not hypothesized or invented post hoc. The Court has emphasized that the government's actual purpose, not a hypothetical one, must satisfy the standard.

The standard emerged from a line of cases beginning with Craig v. Boren (1976), which struck down an Oklahoma law setting different drinking ages for men and women. The Court held that gender classifications must serve important governmental objectives and be substantially related to those objectives. United States v. Virginia (1996) appeared to ratchet up the standard further, requiring an "exceedingly persuasive justification" for gender-based classifications.

Intermediate scrutiny also applies in First Amendment contexts, particularly to content-neutral time, place, and manner restrictions on speech and to regulations of commercial speech. The government must show the regulation serves a substantial governmental interest, directly advances that interest, and is no more extensive than necessary.

Understanding intermediate scrutiny is essential for exam success because students frequently confuse it with the other tiers. The key distinctions are the adjectives: "important" vs. "compelling" (strict scrutiny) vs. "legitimate" (rational basis), and "substantially related" vs. "narrowly tailored" vs. "rationally related."