 | The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject.(August 2017) |
Government or state interest is a concept in law that allows the state to regulate a given matter. The concept may apply differently in different countries, and the limitations of what should and should not be of government interest vary, and have varied over time.
In the United States, the concept of government interest arises especially when certain constitutional issues are before a court of law. Under US constitutional jurisprudence, arising from US Supreme Court decisions, the courts weigh the government's interest in a particular subject matter against the impact of restrictions being imposed on the individuals' rights and interests. A compelling governmental interest may override fundamental constitutional rights, if it satisfies the strict scrutiny test. A government interest is compelling if it is essential or necessary rather than a matter of choice, preference, or discretion. [1] When government action infringes an individual's fundamental rights, the government must show that the government's action is necessary to achieve a compelling government interest. The protection of public health and safety, including the regulation of violent crime, the requirements of national security and military necessity are considered compelling government interests. Restricting access to unapproved prescription drugs is also a compelling government interest. [2] In Wisconsin v. Yoder , on the other hand, the requirement for compulsory education beyond 8th grade was not compelling in the case of Amish children, based on the parents' fundamental right to freedom of religion.
If the subject matter is a legitimate government interest, but does not place a restriction on a fundamental right, the courts will test its validity by applying the rational basis test. [3] Under the Supreme Court's Equal Protection Clause jurisprudence, when the government classifies a restriction based on gender, for example, it must show that its actions further an important government interest, [4] under the intermediate scrutiny standard.
Protecting residential privacy has been recognized as a significant government interest by the U.S. Court of Appeals for the 8th Circuit. [5]
The burden of proof falls on the state in cases that require strict scrutiny or intermediate scrutiny, but not the rational basis.
In Europe, 47 out of 49 countries are part of the European Convention on Human Rights which contains various human rights that the states party to the convention are bound by. Most of these rights contain "limitations" which means that the right is not absolute and can be limited by a state if it follows certain criteria set out by the convention. For example, all limitations must be "prescribed by law" (i.e. not arbitrary and not by a vague law), they must follow a legitimate aim and be necessary in a democratic society. Only the prohibition of torture cannot be limited in any circumstances. [6]
The approach in Europe is very different to the United States where the courts have not been willing to recognize a broad government interest in relation to the 1st or 2nd amendments.
The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity.
Romer v. Evans, 517 U.S. 620 (1996), is a landmark United States Supreme Court case dealing with sexual orientation and state laws. It was the first Supreme Court case to address gay rights since Bowers v. Hardwick (1986), when the Court had held that laws criminalizing sodomy were constitutional.
Planned Parenthood v. Casey, 505 U.S. 833 (1992), was a landmark decision of the Supreme Court of the United States in which the Court upheld the right to have an abortion as established by the "essential holding" of Roe v. Wade (1973) and issued as its "key judgment" the restoration of the undue burden standard when evaluating state-imposed restrictions on that right. Both the essential holding of Roe and the key judgment of Casey were overturned by the Supreme Court in 2022, with its landmark decision in Dobbs v. Jackson Women's Health Organization.
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections stem from the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law." Substantive due process demarcates the line between acts that courts deem subject to government regulation or legislation and those they consider beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent. In 2022, Justice Clarence Thomas called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.
In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
United States v. Carolene Products Company, 304 U.S. 144 (1938), was a case of the United States Supreme Court that upheld the federal government's power to prohibit filled milk from being shipped in interstate commerce. In his majority opinion for the Court, Associate Justice Harlan F. Stone wrote that economic regulations were "presumptively constitutional" under a deferential standard of review known as the "rational basis test".
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), was a case in which the Supreme Court of the United States held that an ordinance passed in Hialeah, Florida, forbidding the "unnecessar[y]" killing of "an animal in a public or private ritual or ceremony not for the primary purpose of food consumption", was unconstitutional.
Turner v. Safley, 482 U.S. 78 (1987), was a U.S. Supreme Court decision involving the constitutionality of two Missouri prison regulations. One of the prisoners' claims related to the fundamental right to marry, and the other related to freedom of speech. The court held that a regulation preventing inmates from marrying without permission violated their constitutional right to marry because it was not logically related to a legitimate penological concern, but a prohibition on inmate-to-inmate correspondence was justified by prison security needs.
Section 1 of the Canadian Charter of Rights and Freedoms is the section that confirms that the rights listed in the Charter are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an individual's Charter rights. This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as child pornography, hate speech, and obscenity.
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustainable Development Goal 17, established in 2015, underscores the link between promoting human rights and sustaining peace.
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment. Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. Heightened scrutiny is applied where a suspect or quasi-suspect classification is involved, or a fundamental right is implicated. In U.S. Supreme Court jurisprudence, the nature of the interest at issue determines the level of scrutiny applied by appellate courts. When courts engage in rational basis review, only the most egregious enactments, those not rationally related to a legitimate government interest, are overturned.
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review and strict scrutiny.
Proportionality is a general principle in law which covers several separate concepts:
In law, commercial speech is speech or writing on behalf of a business with the intent of earning revenue or a profit. It is economic in nature and usually attempts to persuade consumers to purchase the business's product or service. The Supreme Court of the United States defines commercial speech as speech that "proposes a commercial transaction".
The undue burden standard is a constitutional test fashioned by the Supreme Court of the United States. The test, first developed in the late 20th century, is widely used in American constitutional law. In short, the undue burden standard states that a legislature cannot make a particular law that is too burdensome or restrictive of one's fundamental rights.
The margin of appreciation is a legal doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights to judge whether a state party to the European Convention on Human Rights should be sanctioned for limiting the enjoyment of rights. The doctrine allows the court to reconcile practical differences in implementing the articles of the convention. Such differences create a limited right for contracting parties "to derogate from the obligations laid down in the Convention". The doctrine also reinforces the role of the European Convention as a supervisory framework for human rights. In applying that discretion, the court's judges must take into account differences between domestic laws of the contracting parties as they relate to substance and procedure. The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of EU law. The purposes of the margin of appreciation are to balance individual rights with national interests and to resolve any potential conflicts. It has been suggested that the European Court should generally refer to the State's decision, as it is an international court, instead of a bill of rights.
Williams v. Pryor, 229 F.3d 1331, rehearing denied, 240 F.3d 944 was a federal lawsuit that unsuccessfully challenged an Alabama law criminalizing the sale of sex toys in the state. In 1998, a statute enacted by the legislature of the State of Alabama amended the obscenity provisions of the Alabama Code to make the distribution of certain defined sexual devices a criminal offense. Vendors and users of such devices filed a constitutional challenge to the statute in the United States District Court for the Northern District of Alabama against William H. Pryor, Jr., in his official capacity as the Attorney General of the State of Alabama. The district court declined to hold the statute violated any constitutional right but determined the statute was unconstitutional because it lacked a rational basis. The State appealed to the Eleventh Circuit Court of Appeals, which reversed the lower court ruling on October 12, 2000.
Eunique v. Powell, 281 F.3d 940, challenging passport denial for child support arrearage under 42 U.S.C. § 652(k) and enacted as part of the Personal Responsibility and Work Opportunity Act in 1996, is the second cornerstone of the Court's thinking on passport denial/revocation under this law.
Article 18 of the European Convention on Human Rights (ECHR) states:
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
"Necessary in a democratic society" is a test found in Articles 8–11 of the European Convention on Human Rights, which provides that the state may impose restrictions of these rights only if such restrictions are "necessary in a democratic society" and proportional to the legitimate aims enumerated in each article. According to the Council of Europe's handbook on the subject, the phrase is "arguably one of the most important clauses in the entire Convention". Indeed, the Court has itself written that "the concept of a democratic society ... prevails throughout the Convention". The purpose of making such claims justiciable is to ensure that the restriction is actually necessary, rather than enacted for political expediency, which is not allowed. Articles 8–11 of the convention are those that protect right to family life, freedom of religion, freedom of speech, and freedom of association respectively. Along with the other tests which are applied to these articles, the restrictions on Articles 8–11 have been described as "vast limitations", in contrast to American law which recognizes nearly unlimited right to freedom of speech under the First Amendment.