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INTRODUCTION

    b. Rational relation:  Second, there has to be a “minimally rational relation” between the means chosen by the government and the state objective. This requirement, too, is extremely easy to satisfy: only if the government has acted in a completely “arbitrary and irrational” way will this rational link between means and end not be found.

    2. Strict scrutiny:  At the other end of the spectrum, the standard that is hardest to satisfy is the “strict scrutiny” standard of review. This standard will only be satisfied if the governmental act satisfies two very tough requirements:

    a. Compelling objective:  First, the objective being pursued by the government must be “compelling” (not just “legitimate,” as for the “mere-rationality” standard); and

    b. Necessary means:  Second, the means chosen by the government must be “necessary” to achieve that compelling end. In other words, the “fit” between the means and the end must be extremely tight. (It’s not enough that there’s a “rational relation” between the means and the end, which is enough under the “mere-rationality” standard.)

    i.   No less restrictive alternatives:  In practice, this requirement that the means be “necessary” means that there must not be any less restrictive means that would accomplish the government’s objective just as well.

    3. Mid-level review:  In between these two standards is so-called “mid-level” review.

    a. “Important” objective:  Here, the governmental objective has to be “important” (half way between “legitimate” and “compelling”).

    b. “Substantially related” means:  And, the means chosen by the government must be “substantially related” to the important government objective. (This “substantially related” standard is halfway between “rationally related” and “necessary.”)

    B. Consequences of choice:  The court’s choice of one of these standards of review has two important consequences:

    1. Burden of persuasion:  First, the choice will make a big difference as to who has the burden of persuasion.

    a. Mere-rationality standard:  Where the governmental action is subject to the “mere-rationality” standard, the individual who is attacking the government action will generally bear the burden of persuading the court that the action is unconstitutional.

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