Compelling State Interest

I’m in a discussion regarding the Muslim woman not wanting to unveil herself for her driver’s license, and I’ve used the hot word of “compelling state interest” in regards to trying to find a reason why Florida would need her to unveil. (I don’t want to get into the actual argument, just setting up my question.)

From whence does the phrase come from and, more importantly, where does it gain its constitutional/statutory importance?

A state action, to be kosher under the 14th Amendment Equal Protection clause, must be narrowly tailored to a compelling state interest if it uses classifications based on race or national origin. It must meet the same test if it burdens a fundamental right or it will violate the 14th (or 5th) Amendment Due Process clause. This is called “strict scrutiny”; other classifications must meet other standards in which the state interest must be merely “important” (intermediate scrutiny, legitimacy and gender classifications), or more commonly, merely “legitimate” (rational basis scrutiny, pretty much all other classifications). The basic idea is that the state’s interest is so important that it substantially outweighs the purpose of the 14th Amendment protection of races and fundamental rights, and that there is no less restictive means of advancing that interest.

This standard has been pretty much rejected in terms of the Free Exercise Clause, with the odd exception of unemployment compensation, and to some degree the education of Amish children. Generally to be constitutional a law must not interfere with beliefs, but a law that resticts conduct neutrally without regard to religious beliefs is hunky-dory. Rastafarians can’t smoke pot and Thuggees can’t murder, regardless of their sincere religious beliefs. However, states are free to grant more protection to religious beliefs than is required by the U.S. Constitution, even up to requiring the “strict scrutiny” standard in some instances if they so desire.

The Supreme Court since 1937 generally has refused to engage in substantive determinations regarding the reasonability or rationality of having certain classifications made by a legislature. The exception comes when the classification is “suspect,” meaning that it is likely to be based on impermissible rationales. The most well-known such suspect classification is classification by race. Such classifications are subjected to “rigid” or “strict” scrutiny. This means that the law must be narrowly tailored to meet a compelling or overriding interest, else it violates the equal protection clause of the Fourteenth Amendment. A similar scrutiny is given by the Court to legislative actions that affect a “fundamental right” as defined by the Court. Such rights include those embodied by the First Amendment, and incorporated into the Fourteenth Amendment, the right to engage in interstate travel, the right to vote, the right to freedom of choice in marriage, and some limited others.

Allthough the standard of review appears to allow for laws to pass muster even under “strict” scrutiny, the truth is that very few laws subjected to strict scrutiny are found to meet a “compelling interest.” One of the few is University of California Regents v. Bakke, 438 U.S. 265 (1978), though it is always hard to use Bakke as support for much of anything because of the highly fractured nature of the decision (in essence the Court split 4-4 on the issues of whether race could be used as a factor in admission to college and whether Mr. Bakke had been impermissibly excluded by such use; Mr. Justice Powell went half-and-half by saying race could be used, but that the program used by the University of California wasn’t narrowly tailored to meet the compelling interest, forcing the admission of Bakke).

It should be noted, however, that the “strict scrutiny” test has been abandoned with regard to freedom of religion cases. For those cases involving the “establishment” of a state religion, the test is a multi-pronged disaster that inquires into such things as the extent of entanglement, the primary effect of the law, etc. For “free exercise” cases, the Court has decided to return to a review based solely upon whether the affect of the legislative action is “religion neutral”; if it is, then there need only be a rational basis for the law, and any incidental effect upon a person’s religious practices is immaterial. See Employment Division v. Smith, 494 U.S. 872, 878 (1990). Therefore, it is doubtful that the case of the Muslim wanting to be veiled for her driver’s lisence photo will get very far; the requirement of a driver’s lisence photo that shows the face will be found to be religion neutral; those religions affected by the rule will simply have to choose between having a lisence and showing their face.