Levels of Scrutiny Applied by State Courts, Explained

State constitutions protect numerous rights and liberties of state residents. Some of these rights are similar to those guaranteed to all Americans by the federal Constitution, such as freedom of speech or protection against unreasonable searches and seizures. But state constitutions also include rights that have no federal equivalent. These unique state constitutional rights vary state to state, but common examples are rights to public education and to free and equal elections.

When a law is passed that impairs a person’s constitutionally protected rights, that person can challenge the law in court, arguing either that the way government officials have applied the law to them violates their rights — called an “as-applied” challenge — or that the law is generally unconstitutional in all applications — called a “facial” challenge. A court faced with either type of claim must decide whether the law impermissibly infringes the asserted state constitutional rights.

Just because a right is protected, that does not mean it is unlimited. According to the courts of all 50 states, state legislatures may pass laws that restrict or burden state constitutional rights, but only to a certain degree. In assessing the constitutionality of state laws, state courts will generally consider several factors, including the importance of the right, how severely the law restricts that right, and the government’s reasons for intruding on that right. In weighing these factors to determine whether the restriction is permissible, state courts usually apply one of several tests, known as tiers of scrutiny, or levels of scrutiny. Tiers of scrutiny are also used to analyze many federal constitutional rights, and, in most states, the analysis that courts apply to state constitutional rights is similar to the approach used for federal rights.

Strict Scrutiny

Strict scrutiny is the most stringent test courts typically apply and is reserved for laws that restrict the most fundamental rights. Sometimes a state constitution will specify that a right is fundamental, but often it is left to state courts to determine whether a particular state constitutional right qualifies. The basic essence of a fundamental right is that it is considered so key to personal freedom that there is almost never a legitimate reason for government interference. While there is some variation in what each state’s constitution and courts consider as fundamental rights, examples include the rights to privacy, religious belief, and trial by jury.

If the person bringing a legal challenge to a law demonstrates to the court that the right at stake is fundamental and the law infringes on that right, the court will apply strict scrutiny. The law or its application then will be upheld only if the government demonstrates that its action was “narrowly tailored” to further or achieve “a compelling governmental interest.” In other words, even if the government has a very good reason for intruding on the right, the law generally must be the least restrictive way of achieving that purpose. A law analyzed under strict scrutiny review is unlikely to survive.

Rational Basis Review

If a right is not deemed fundamental, a law restricting that right will usually be judged under rational basis review. In many states, economic rights, such as entitlement to a job, business, service, or benefit, trigger rational basis review.

In contrast to strict scrutiny, rational basis is the most lenient test. For a law to be upheld under this test, it simply has to be “rationally related to a legitimate governmental interest” — meaning there must be a non-arbitrary relationship between the restriction and a reason the government has for imposing it. State courts applying rational basis review frequently do not even require legislators or officials defending a restriction to identify a particular reason for the law. Rather, the plaintiff must convince the judge, who can supply her own justification, that there is no conceivable logical basis for the law. As a result, laws are rarely struck down under rational basis review.

Particularly with occupational rights, however, some state courts have required the government to meaningfully justify restrictions and have made clear that certain interests, such as protecting competitors, are insufficient. Some courts have also held that if a law’s effects are too burdensome in light of the government’s goal, it will not withstand rational basis.

Intermediate Scrutiny

In between strict scrutiny and rational basis is intermediate scrutiny, sometimes called “heightened” or “middle-tier” scrutiny. State courts commonly apply intermediate scrutiny to claims that a law violates the right to “equal protection of laws.” Courts have recognized that laws treating people differently based on certain characteristics like race or national origin are inherently “suspect” so trigger strict scrutiny. But courts have often held that treating people differently based on other traits — most commonly gender or sex — may sometimes be warranted, so something less stringent than strict scrutiny is usually appropriate. For example, courts often find laws rooted in “biological differences” between men and women, such as those treating paternity and maternity claims differently, to be less suspect and therefore apply intermediate scrutiny.

If a plaintiff establishes that intermediate scrutiny should apply to a law, the state must demonstrate the law is “substantially related to an important governmental interest” for it to survive. Put another way by courts, the government must have an “exceedingly persuasive” justification for a law to survive intermediate scrutiny.

While intermediate scrutiny is most commonly applied to claims based on equal protection, some state courts have found intermediate scrutiny also appropriate for laws that interfere with “important,” but not quite fundamental, rights, such as the right to a court remedy for a legal wrong.

Tests Unique to Specific Rights

Some state courts have developed specialized tests that apply to only one right. For example, laws affecting the right to vote — a right affirmatively granted in nearly every state constitution — are an area in which state courts have considered unique tests and adopted state-specific variations.

For many challenges to voting restrictions under the U.S. Constitution, courts use a test called Anderson-Burdick (named for the two Supreme Court cases from which it derives), which balances the burden a law imposes on participation in the electoral process against the state’s asserted interests. Under this test, courts apply strict scrutiny when a law “severely burdens” the right to vote but otherwise tend to defer to the government. In practice, then, the federal Anderson-Burdick test often functions much like rational basis review.

A number of state courts have departed from Anderson-Burdick when analyzing laws restricting the right to vote under their own constitutions. Recent state-specific approaches include applying strict scrutiny to laws that “impermissibly interfere” with voting and a form of middle-tier scrutiny to laws that only minimally burden suffrage; asking whether a restriction creates “so much burden as really to be imposing additional qualifications” to vote; and invoking strict scrutiny in the case of any “heavy burden.”

Similarly, states have varied significantly in how they approach laws restricting abortion.

Some states’ courts have recognized the right to decide to end a pregnancy as fundamental —based on their interpretation of the state’s existing constitution or a constitutional amendment passed by voters to explicitly protect abortion access — and thus apply strict scrutiny to abortion restrictions. Some such amendments actually go further and limit what may constitute a “compelling” government interest for purposes of strict scrutiny analysis in that state. Other state courts, by contrast, have said only a more limited right qualifies as fundamental, such as a right to abortion solely when provided in response to a medical emergency. On the other end of the spectrum, some states have applied rational basis review to abortion restrictions or not recognized any constitutional right to an abortion.

Some states have applied a separate “undue burden” test unique to abortion rights. Modeled off a federal standard articulated by the Supreme Court in Planned Parenthood v. Casey, it barred abortion restrictions that placed a “substantial obstacle” in the way of a pregnant person’s access to an abortion before the point of fetal viability. Since Dobbs overturned that approach for purposes of the federal Constitution, however, some state courts also have departed from it.

State courts are also grappling with how to apply a unique federal Second Amendment test developed in recent years by the Supreme Court, most notably in New York State Rifle & Pistol Association. v. Bruen, to claims asserting state constitutional rights to keep or bear arms. To satisfy the federal Bruen test, gun laws must be analogous to historic weapons restrictions. When evaluating state constitutional challenges to gun regulations, state courts may weigh whether an individual right to firearms exists at all under the state’s constitution, whether to apply the Bruen history and tradition analysis or a form of strict scrutiny, and whether constitutional amendments passed in some states that require strict scrutiny for gun regulations should be viewed as complementing Bruen’s historical approach to create an even more stringent, combined test.

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Which test a court applies to a law restricting a particular right often dictates how likely the court is to uphold the law, making these standards of review consequential for parties and the public alike. While these tests appear distinct on paper, they frequently blur when courts use them in practice.

Morgan Munroe is a student at NYU Law School. She previously participated in the Brennan Center’s Public Policy Advocacy Clinic.

Sarah Kessler is an advisor and contributing editor to State Court Report.

Suggested Citation: Morgan Munroe & Sarah Kessler, Levels of Scrutiny Applied by State Courts, Explained, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 12, 2025), https://statecourtreport.org/our-work/analysis-opinion/levels-scrutiny-applied-state-courts-explained