Judicial Scrutiny standards judge claims of constitutionality

Claims regarding the constitutionality of laws are subject to judicial review. Generally speaking, and simplifying matters considerably, courts use three different standards to adjudicate constitutional claims: (1) rational basis review; (2) intermediate scrutiny; (3) and strict scrutiny. The “standard of scrutiny” applied to a particular claim is of critical legal importance and usually determines whether the claim will succeed.  

The first standard — rational basis review — is the most forgiving.  Under rational basis review, a litigant challenging a law on constitutional grounds “bear[s] the burden of proving that it does not bear a rational relation to any conceivably legitimate governmental purpose—even a hypothetical one.”  With vanishingly few exceptions, nearly all laws satisfy this standard.

The second standard, known as “intermediate scrutiny,” raises the stakes considerably.   Under this . . .  a law “must serve important governmental objectives, and . . . the discriminatory means employed must be substantially related to the achievement of those objectives.”  

The third standard of review, which is the most rigorous, is “strict scrutiny.”  Under strict scrutiny, “the government must prove that the challenged law is both narrowly tailored and the least-restrictive means available to further a compelling governmental interest.”  Strict scrutiny applies in areas such as racial and religious discrimination, and it also applies to many claims involving free speech.

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I have yet to see any valid government justification in support of the HOA legal scheme that deprives citizens of their constitutional and fundamental rights. Some have argued that it eases the state/county’s financial burden as a legitimate government interest. However, the HOA scheme must be reviewed under strict scrutiny as it damages the members’ rights and freedoms. Furthermore, the claim that the member agreed to the Declaration and surrendered and waived his rights has come under criticism as an invalid surrender in the courts.

Source: Constitutional Standards of Scrutiny (link: Supreme Court of Tennessee Blog)