Document Type
Article
Publication Date
Spring 2014
ISSN
2643-1149
Publisher
Nelson A. Rockefeller Center for the Social Sciences
Language
en-US
Abstract
Dissenting in Lawrence v. Texas, Justice Scalia stated that, under the Due Process Clause, if an asserted liberty is a "fundamental right," it triggers "strict scrutiny" that almost automatically invalidates any statute restricting that liberty. For strict scrutiny requires that the challenged statute, to be upheld, must further a "compelling governmental interest" and must be "necessary" or "narrowly tailored" to doing so. Scalia also wrote that if an asserted liberty is not a fundamental right, it is merely a "liberty interest" that triggers rational basis scrutiny that is so deferential that the Court all but automatically upholds the statute in question. For deferential rational basis scrutiny requires merely that the challenged statute, to be valid, must further a "legitimate governmental interest" and need only be "rationally related" to doing so.
Recommended Citation
James E. Fleming & Linda C. McClain,
The Myth of Strict Scrutiny for Fundamental Rights
,
in
12
Dartmouth Law Journal
1
(2014).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/2701
