Judicial Review and Tests Created by the Courts

Judicial review is where a court determines whether or not the government violated the Constitution.  The process typically begins with a person challenging a law (or government activity) in court. The person challenging the law must have standing, meaning he must be a person affected by the law.    

Over the years, Justices of the Supreme Court created a number of tests to determine whether the government violated the Constitution or not.  Lower federal courts follow the Supreme Court and apply the same tests when they conduct judicial review.  

Different Tests for Different Laws  

Courts apply different tests depending on the law and the Constitutional provision involved.

Rational Basis, Intermediate Scrutiny, and Strict Scrutiny Tests

Three common tests that courts apply when they conduct judicial review are the rational basis, intermediate scrutiny, and strict scrutiny tests.  Each test considers two factors: what is the purpose of the law and how closely is the law related to that purpose.

The rational basis test is the easiest test for the government.  The person objecting to the law must prove that the law does not have a rational relationship to a legitimate government purpose.

Intermediate scrutiny applies a more difficult test for the government because the government must prove that the law serves an important purpose and there is a substantial relationship between the law and the purpose.  

Strict scrutiny is the most difficult test because the government must prove that the law serves a compelling purpose and that the law is narrowly tailored or the least restrictive way to achieve that purpose.

Here is a video on the three tests:

When do Courts Apply the Rational Basis, Intermediate Scrutiny, and Strict Scrutiny Tests?

As a general rule courts apply these tests under the following circumstances:

Rational Basis: No fundamental rights are involved, nor is there any discrimination based on race or gender.

Intermediate scrutiny: Certain cases involving discrimination based on gender and in some cases where the government compels a party to make disclosures .

Strict  Scrutiny: Cases involving certain fundamental rights such as free speech or discrimination based on race.

Federal courts frequently deal with challenges to government activity based on the First Amendment right to religious freedom.  This section briefly discusses these cases and applicable tests.

The Establishment Clause

The “Establishment Clause” of the First Amendment prohibits the government from establishing a national religion. Some cases arising under the Establishment Clause have included:

• Prayer in public schools;
  
• Prayer at government meetings; and
• Religious imagery on government property.

Tests for Violations of the Establishment Clause

One of the oldest and most common tests applied by the federal courts is the so-called Lemon Test, first applied in Lemon v. Kurzman.

The test asks three questions:

• Does the law have a secular purpose?
  
• Does the primary effect of the law neither advance nor inhibit religion?
• Does the law excessively entangle the government with religion?

But not all Supreme Court justices support the Lemon Test and not all federal courts apply it.  

Justices have proposed alternatives to the Lemon Test, including the so-called “endorsement” and “coercion” tests.  To date there is no uniform test to determine whether a government law or activity violated the First Amendment.