"Intermediate" Versus "heightened"
The phrase "heightened scrutiny" has been used interchangeably with "intermediate scrutiny" but it is unclear if the two are actually legally interchangeable. In Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008), the United States Court of Appeals for the Ninth Circuit ruled that the law commonly known as "don't ask, don't tell" (DADT) was subject to "heightened" scrutiny based on its analysis of Lawrence. The court articulated a three-pronged test for heightened scrutiny. To pass, the law "must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest". This differs from the "substantially related to important governmental interests" two-prong test for "intermediate" scrutiny. As the Obama administration chose not to appeal Witt to the Supreme Court, it is binding precedent on the Ninth Circuit and it has been cited as such in Log Cabin Republicans v. United States, another case challenging the constitutionality of DADT. The District court in LCR applied the three-pronged test in ruling DADT unconstitutional. The administration appealed this decision to the Ninth Circuit but in the face of the December 2010 legislative repeal of DADT the legal ramifications of these decisions are unclear.
Read more about this topic: Intermediate Scrutiny
Famous quotes containing the words intermediate and/or heightened:
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