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The "compelling state interest" test

By Robert S. Sargent Jr.
web posted April 28, 2003

In Grutter v. Bollinger, the case that came before the Sixth Circuit Court that challenged the University of Michigan's law school admissions policy, we read in the majority opinion that the Court reviewed Regents v. Bakke, and found that "Justice Powell's opinion that diversity is a compelling state interest remains binding as precedent…." Compelling state interest is a legal term that comes up again and again in court cases. To understand what it means, don't go to the Constitution, you won't find it.

In 1960, in Shelton v. Tucker, an Arkansas statute that required teachers to file every year an affidavit "listing without limitation every organization to which he has belonged…within the preceding five years," was challenged as violating the Due Process Clause of the 14th Amendment. Justice Stewart for the majority opinion wrote: "The statute's comprehensive interference with associational freedom goes far beyond what might be justified in the exercise of the "State's legitimate inquiry" (my emphasis) into the fitness…of its teachers." And in Justice Harlan's dissent he wrote, "Where official action is claimed to invade these rights (free speech and association), the controlling inquiry is whether such action is justifiable on the basis of a "superior governmental interest" (my emphasis) to which such individual rights must yield." While the term "compelling state interest" wasn't used, the analysis, as far as free speech went, was applied in Shelton v. Tucker.

The next year, 1961, in Braunfeld v. Brown, an Establishment and Free Exercise Clause challenge, Justice Brennan wrote, "What then is the ‘compelling state interest' (my emphasis) which impels…Pennsylvania to impede appellants' freedom of worship?" This is the first use of those exact words that I can find, and in 1963 it was made doctrine in Sherbert v. Verner. This case involved a Seventh-day Adventist who was disqualified for unemployment benefits because, refusing to work on Saturdays, turned down "suitable work when offered." The Court found that the statute violated the Free Exercise Clause of the 1st Amendment (applied to the states through the 14th Amendment). Justice Brennan writing for the majority, in overturning the decision of the South Carolina Supreme Court, said, "If the decision of the South Carolina Supreme Court is to withstand appellant's constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a ‘compelling state interest' (my emphasis) in the regulation of a subject within the State's constitutional power to regulate."

This "compelling state interest" test has now expanded to any "fundamental" rights affected by governmental action. The test can be used to either justify a ruling (as in the Michigan case), or nullify a statute (as in Roe v. Wade: where "certain ‘fundamental rights' are involved…(any) regulation limiting these rights may be justified only by a ‘compelling state interest'…(and) that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.")

In my opinion, the compelling state interest test allows federal courts in reviewing state statutes, to justify their "opinions" as to the constitutionality of a law. If they don't like it, as in Roe, they can strike it down declaring that the State's legitimate interest is in the health of the mother. If they do like it as the Sixth Circuit Court did of race based admissions policies, they will use the compelling state interest test to trump the Equal Protection Clause.

No longer do we have states deciding what's in their own best interest. The compelling state interest test allows five justices (a majority of the Court) to decide what a "fundamental" right is, and whether a state law affecting that "right" is in the state's interest, and whether it is "compelling" or not. The Constitution, of course, says otherwise. The 9th Amendment guarantees that the "people" will decide what rights they have, and the 10th Amendment guarantees that the states (as long as they don't bump up against the federal document) shall decide what their compelling interests are. For those of us still dreaming of a return to a more strict federal system, this is a part of jurisprudence that will have to go.

Robert S. Sargent, Jr. is a frequent contributor to Enter Stage Right and can be reached at rssjr@citcom.net.

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