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In the free speech context, intermediate scrutiny is the test or standard of review that courts apply when analyzing content-neutral speech versus content-based speech. Content-based speech is reviewed under strict scrutiny in which courts evaluate the value of the subject matter or the content of the communication.
Craig v. Boren, 429 U.S. 190 (1976), was a landmark decision of the US Supreme Court ruling that statutory or administrative sex classifications were subject to intermediate scrutiny under the Fourteenth Amendment's Equal Protection Clause. [1]
New Jersey Constitution, Article X, paragraph 4 (1947) New Mexico - No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person. New Mexico Constitution, Article II, §18 (1973)
Through intermediate scrutiny, the Court upheld the statute and its gender-based distinction because it helped to further an important state goal. It was a 5-4 vote upholding California's statute. However, the Justices who voted in the majority could not decide on a reason for their ruling, so the decision is considered a plurality. [1]
When intermediate scrutiny is involved, the courts are more likely to oppose the discriminatory law when compared to a rational basis review particularly if a law is based on gender. However, a court will likely uphold a discriminatory law under intermediate scrutiny if the law has an exceedingly persuasive justification and applies to real ...
Intermediate scrutiny, which is often applied in gender discrimination cases, did not arise until decades later. When applied, the law must serve an important governmental interest and be substantially related to that end. Some argue that the "most famous footnote" was in fact written by not Stone but his law clerk, Louis Lusky. [4]
A suspect classification would be held to a more exacting standard of scrutiny known as strict scrutiny. The ACLU established its Women's Rights Project under Ginsburg to develop cases to persuade the court to treat sex-based distinctions that way. [4] Hundreds of laws were changed after the Reed v. Reed ruling. "Congress went through all of ...
As the name implies, it is more strict than rational basis review but less strict than strict scrutiny. [10] Other forms of intermediate scrutiny are applied in other contexts. For example, under the Free Speech Clause, content-neutral time, place, and manner restrictions on speech are subject to a form of intermediate scrutiny.