Editing Strict scrutiny (section)

== Applicability ==
U.S. courts apply the strict scrutiny standard in two contexts:

* when a fundamental constitutional right is infringed,<ref>{{Cite web |last=Blackmun |first=H. |title=Roe v. Wade, 410 U.S. 113 (1973) |url=https://supreme.justia.com/cases/federal/us/410/113/|access-date=2023-02-12|website=Justia Law|language=en}}</ref> particularly those found in the [[United States Bill of Rights|Bill of Rights]] and those the court has deemed a [[fundamental right]] protected by the [[Due Process Clause]] or "liberty clause" of the [[Fourteenth Amendment to the United States Constitution|14th Amendment]], or
* when a government action applies to a "[[suspect classification]]", such as [[Race (classification of human beings)|race]] or [[national origin]].

To satisfy the strict scrutiny standard, the law or policy must:

* be justified by a [[government interest|compelling governmental interest]]. While the Courts have never [[bright line rule|brightly defined]] how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of a large number of individuals, and not violating explicit constitutional protections.
* be [[narrow tailoring|narrowly tailored]] to achieve that goal or interest. If the government action encompasses too much (is [[overbreadth doctrine|overbroad]]) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
* be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, but the Court generally evaluates it separately.

Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact" since popular perception is that most laws subjected to the standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts found that laws survive strict scrutiny more than 30% of the time. In one area of law, [[freedom of religion|religious liberty]], laws that burden religious liberty survived strict scrutiny review in nearly 60% of cases. However, a discrepancy was found in the type of religious liberty claim, with most claims for exemption from law failing and no allegedly discriminatory laws surviving.<ref>{{Cite web|url=https://papers.ssrn.com/abstract=897360|title=Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts|first=Adam|last=Winkler|date=April 18, 2006|ssrn=897360 |via=papers.ssrn.com}}</ref> See also the cases cited below, however; several appear to permit the exemption from laws based upon religious liberty.

[[Harvard Law School|Harvard law]] professor Richard Fallon Jr. has written that rather than being neatly applied, under strict scrutiny, "interpretation is more varied than is often recognized",<ref>{{Cite journal|last=Fallon, Jr.|first=Richard|date=2007|title=Strict Judicial Scrutiny|url=https://www.uclalawreview.org/wp-content/uploads/2019/09/33_54UCLALRev1267June2007.pdf|journal=UCLA Law Review|volume=54|pages=1267}}</ref> a view that has been acknowledged by U.S. [[Supreme Court of the United States|Supreme Court]] Justice [[Clarence Thomas]] (e.g., in his dissent (part III) in ''[[Whole Woman's Health v. Hellerstedt|Hellerstedt]]'').<ref>{{cite court |court=US Supreme Court |date=2016-07-27 |litigants=[[Whole Woman's Health v. Hellerstedt|Whole Woman's Health et al. v. Hellerstedt, Commissioner, Texas Department of State Health Services, et al.]] |pinpoint=pp. 11-14 of Thomas's dissent |url=https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf |archive-url=https://web.archive.org/web/20220701040743/https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf |url-status=dead }}</ref>

The compelling state interest test is distinguishable from the [[rational basis]] test, which involves claims that do not involve a suspect class or [[fundamental right]], but still arise under the [[Equal Protection Clause]] or [[Due Process Clause]].

[[Presumption of constitutionality]] doesn't apply under ''strict scrutiny''; the burden to prove the constitutionality of a law shifts to the government lawyers.