The state’s constitution protects many rights and freedoms of the residents of the state. Some of these rights are similar to those guaranteed by the federal constitution to all Americans, including freedom of speech and protection against unreasonable searches and seizures. However, the state’s constitution does not include federal equivalent rights either. The constitutional rights of these unique states vary from state to state, but the general example is the right to public education and a free and equal election.
If a law is passed that undermines a constitutionally protected right, the person can challenge the law in court, and the way government officials apply the law to them can infringe on rights called “applied” assignments, or argue that it is generally unconstitutional in all applications called “face” assignments. A court facing any type of claim must determine whether the law is acceptablely infringing the constitutional rights of the state in which it is arguedly violating.
Just because your rights are protected doesn’t mean it’s unlimited. According to all 50 state courts, state legislatures may pass laws that limit or ow the constitutional rights of a state, but only to a certain extent. In assessing the constitutionality of state law, state courts generally consider several factors, including the importance of rights, how the law limits those rights, and government reasons for invading those rights. When weighing these factors and determining whether restrictions are acceptable, state courts usually apply one of several tests known as the layer of scrutiny or level of scrutiny. The layer of scrutiny is 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 usually the strictest test court, normally applied and reserved for laws that restrict the most fundamental rights. The state constitution may specify that rights are fundamental, but in many cases it is left to the state court to determine whether a particular state’s constitutional rights qualify. The fundamental essence of fundamental rights is that there is never a valid reason for government interference, as it is considered the key to individual freedom. There are some variations in the constitutions and what the courts consider as fundamental rights in each state, but examples include privacy, religious beliefs and rights to court by a jury.
The basic principle is that the person who challenges the law is at risk to the court, and if the law shows the court that it violates that right, the court will apply strict scrutiny. In that case, the law or its application is only supported if the government demonstrates that it has been “narrowly adjusted” to further or achieve “attractive government interests.” In other words, even if the government has very good reasons to invade the right, the law generally must be the most restrictive way to achieve its objectives. Laws analyzed under strict scrutiny reviews rarely survive.
A reasonable basic review
If a right is not considered fundamental, the law restricting that right is usually determined under a review of reasonable basis. In many states, economic rights such as job, business, service, or interest qualifications lead to a reasonable basic review.
In contrast to strict scrutiny, rational evidence is the most generous test. For the law to be supported under this test, it must simply be “reasonably related to the interests of legitimate government.” That is, there must be a non-arrative relationship between the restrictions and reasons the government has to impose it. State courts that apply a review of reasonable grounds often do not even require lawmakers or officials to defend restrictions on identifying specific reasons for the law. Rather, the plaintiff must convince the judge who can provide his justification that there is no reason to consider in the law. As a result, laws are rarely repealed under a reasonable basic review.
However, particularly regarding occupational rights, some state courts have requested the government to meaningfully justify restrictions, making certain interests, such as protecting competitors, are inadequate. Some courts also found that if the impact of the law is too burdensome in light of government goals, then they cannot withstand reasonable grounds.
Interim vet
Between strict scrutiny and reasonable grounds, intermediate scrutiny, known as “strengthened” or “middle tier” scrutiny, is moderate. State courts generally apply interim scrutiny to argue that the law violates the right to “equal protection of the law.” The courts recognize that laws treating people differently based on certain characteristics such as race and national origin are essentially “suspectful” and thus lead to strict scrutiny. However, the courts have found that stricter than strict scrutiny is often appropriate, as it can be guaranteed to treat people differently based on other characteristics (most commonly gender or gender). For example, courts often find laws rooted in “biological differences” between men and women, such as those who treat paternity and obstetric claims differently, and therefore apply interim scrutiny.
If the plaintiff establishes that intermediate scrutiny should apply to the law, the state must show that the law is “relatively related to the interests of the government” in order for it to survive. Put another way by the court, the government must have a “very convincing” justification for the law to survive interim scrutiny.
While intermediate scrutiny applies most commonly to claims based on equal protection, some state courts also allow intermediate scrutiny, which is also suitable for laws that are not “important” but also hampering fundamental rights, such as the right to court remedy for legally false violations.
Tests specific to specific rights
Some state courts have developed specialized tests that apply to only one right. For example, laws that affect voting rights – rights granted positively in almost every state constitution – are areas in which state courts have considered their own tests and adopted state-specific variations.
Due to many challenges to voting restrictions under the US Constitution, courts use tests called Anderson Bulldick (It was named after two Supreme Court cases that it derives). This balances the burden that the law places on participation in the election process for states’ alleged interests. In this test, the court applies strict scrutiny if the law “badly burdens” the voting rights but otherwise tends to defer the government. In fact, the Federation Anderson Bulldick In many cases, tests work in the same way as a reasonable basic review.
Many state courts have departed Anderson Bulldick When analyzing laws that limit the right to vote under your constitution. Recent state-specific approaches include applying strict scrutiny to laws that “unacceptably interfere with” middle class scrutiny against laws with voting and minimal burden of power. Ask if the limit votes “the more burden it actually places on additional qualifications.” And in the case of “heavy burdens,” it induces strict scrutiny.
Similarly, states differ greatly in how they approach laws restricting abortion.
Courts in some states recognize the right to decide to essentially end a pregnancy based on an interpretation of the existing constitution or a constitutional amendment passed by voters. Some of such amendments actually go further and limit what could constitute “persuasive” government interests for the purposes of a rigorous scrutiny analysis in that state. In contrast, other state courts state that only a limited right, such as the right to abortion, are eligible as basic, only when provided in response to a medical emergency. At the other end of the spectrum, some states either apply a reasonable basic review of abortion restrictions or are not aware of their constitutional rights to abortion.
Some states apply another “overburden” test that is inherent to abortion rights. Modeled on federal standards clarified by the Supreme Court. Planned Parenthoodv. Caseybanned abortion restrictions that placed “substantial obstacles” to prevent access to abortion during pregnancy prior to fetal survival. Since dobbs However, it overturned that approach for the purposes of the federal constitution, but some state courts also left.
The state courts have also been in recent years, particularly the Supreme Court. New York State Rifle & Pistol Association. v. Bruneclaims to assert the constitutional right of a state to maintain or endure arms. Satisfy the Federation bridge Testing, gun laws should be similar to historical weapon restrictions. When assessing a state’s constitutional challenge to gun control, a state court can consider whether or not there is any individual right to a firearm under the state’s constitution and whether or not it applies. bridge An analysis of history and traditions, or a strict form of scrutiny, and whether constitutional amendments have been passed in some states requiring strict scrutiny of gun control should be considered as complementary. bridge A historical approach to creating even more rigorous combination tests.
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The application of courts to laws restricting certain rights often determines how possible it is for the court to uphold the law, and results in these examination criteria equally for the parties and the public. These tests appear different on paper, but often blurry when courts actually use them.
Morgan Man Law is a student at NYU Law School. She previously attended the Brennan Centre Public Policy Advocacy Clinic.
Sarah Kessler is an advisor and contributing editor State court report.
Suggested Quotes: Morgan Munroe and Sarah Kessler, The level of scrutiny applied by the state courts was explained.sᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (May 12, 2025), https://statecourtreport.org/our-work/analysis-opinion/levels-scrutiny-applied-courts-explained
