COMPELLING STATE INTEREST

When the Supreme Court concludes that strict scrutiny is the appropriate standard of review, it often expresses its searching examination of the justification of legislation in a formula: the law is invalid unless it is necessary to achieve a "compelling state interest." The inquiry thus touches not only legislative means but also legislative purposes.

Even the permissive rational basis standard of review demands that legislative ends be legitimate. To say that a governmental purpose must be one of compelling importance is plainly to demand more. How much more, however, is something the Court has been unable to say. What we do know is that, once "strict scrutiny" is invoked, only rarely does a law escape invalidation.

Any judicial examination of the importance of a governmental objective implies that a court is weighing interests, engaging in a kind of cost-benefit analysis as a prelude to deciding on the constitutionality of legislation. Yet one would be mistaken to assume that the inquiry follows such a neat, linear, two-stage progression. Given the close correlation between employing the "strict scrutiny" standard and invalidating laws, the very word "scrutiny" may be misleading. A court that has embarked on a search for compelling state interests very likely knows how it intends to decide.

In many a case a court does find a legislative purpose of compelling importance. That is not the end of the "strict scrutiny" inquiry; there remains the question whether the law is necessary to achieve that end. If, for example, there is another way the legislature might have accomplished its purpose, without imposing so great a burden on the constitutionally protected interest in liberty or equality, the availability of that least restrictive means negates the necessity for the legislature's choice. The meaning of "strict scrutiny" is that even a compelling state interest must be pursued by means that give constitutional values their maximum protection.

The phrase "compelling state interest" originated in Justice felix frankfurter's concurring opinion in Sweezy v. New Hampshire (1957), a case involving the privacy of political association: "For a citizen to be made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling." The Supreme Court uses some variation on this formula not only in first amendment cases but also in cases calling for "strict scrutiny" under the equal protection clause or under the revived forms of substantive due process. The formula, in short, is much used and little explained. The Court is unable to define "compelling state interest" but knows when it does not see it.

Kenneth L. Karst
(1986)

Bibliography

Tribe, Laurence H. 1978 American Constitutional Law. Pages 1000–1002. Mineola, N.Y.: Foundation Press.