Reply #132: Levels of Scrutiny Under the Equal Protection Clause

[AP]

Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis
1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.):
A. Suspect Classifications:
1. Race
2. National Origin
3. Religion (either under EP or Establishment Clause analysis)
4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).
B. Classifications Burdening Fundamental Rights
1. Denial or Dilution of the Vote
2. Interstate Migration
3. Access to the Courts
4. Other Rights Recognized as Fundamental
2.  MIDDLE-TIER SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.):
Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy
3.  MINIMUM (OR RATIONAL BASIS) SCRUTINY (The govenment need only show that the challenged classification is rationally related to serving a legitimate state interest.)
Minimum scrutiny applies to all classifications other than those listed above, although some Supreme Court cases suggest a slightly closer scrutiny ("a second-order rational basis test") involving some weighing of the state's interest may be applied in cases, for example, involving classifications that disadvantage mentally retarded people, homosexuals, or innocent children of illegal aliens.  (See "Should the Rational Basis Test Have Bite?")

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm