In US law strict scrutiny requires the government to prove there is a legitimate reason for any law which discriminates. Why is the burden of proof on the government and not the other way round?


1 Answer 1


The premise of the question is unsound. See, e.g., Alexander v. Bozeman Motors, Inc., 2010 MT 135 (Montana Supreme Court 2010) which held (in support of the overwhelming majority rule) that statutes are presumed constitutional, and the party challenging a statute bears the burden of proving the statute unconstitutional beyond a reasonable doubt. The claimants in that case failed to meet their burden of proving § 39-71-413, Montana Code Annotated, was unconstitutional.

The burden of proof is generally on the ultimate merits and the burden of coming forth with evidence to establish a prima facie case are always on a party seeking relief.

Arguably, strict scrutiny could be seen as an affirmative defense to a constitutional violation, to which a different burden of proof applies and is placed on the state, but I do not have confidence that that question has a uniform resolution that follows that logic in all U.S. jurisdictions.

The strict scrutiny analysis generally comes into play only once the party challenging the statute has already established that the statute is subject to strict scrutiny because it violates a constitutional right beyond a reasonable doubt.

Then, the question is whether a state can overcome that showing, by providing some evidence and argument to show that it meets the strict scrutiny test, with the ultimate burden of proof usually still on the party seeking to invalidate the law. This is usually so even though the state must present some evidence that it met the strict scrutiny test in the first place in order to impose the obligation on the party seeking to invalidate the law to show beyond a reasonable doubt that the strict scrutiny test has not been met.

The statement at legal-dictionary.thefreedictionary.com/Strict+Scrutiny+Test about the state bearing the burden of proof in these cases is sloppy writing on the part of the legal dictionary definition writer from a legal dictionary not widely accepted as authoritative, that oversimplifies the analysis. It wouldn't be unusual for a full treatment of this issue that doesn't take shortcuts to take a dozen pages, rather than a sentence or two.

  • Thanks very much!
    – Gueda
    Commented Dec 31, 2019 at 7:25

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .