Due Process of Law Part IV: Levels of Scrutiny

Now that we’re done with the basics of due process. Let’s move on to a fun topic: levels of scrutiny. What makes it fun is it sort of requires detective work. We’ll see how later on.

Remember our definition of substantive due process?
Substantive due process refers to the validity of a law or government action that interferes with the rights of a person to life, liberty, or property. It serves as a restriction on the government’s law- and rule-making powers.

What our levels of scrutiny will scrutinize is the law or government action referred to in our definition. In short, our due process analysis is basically just to determine whether a law or government action is valid.

What then needs to be considered in these levels of scrutiny or review?
1. Interest invoked by the government
2. The means employed to achieve that interest

By interest, we mean the governmental objective that referred to in the first requisite of substantive due process:
1. Valid governmental objective
2. the means employed must be reasonably related to the accomplishment of the purpose and not unduly oppressive

Come to think of it, the considerations are basically reflective of the requisites of substantive due process.

Before going to the levels of scrutiny, it should be noted that government action enjoys the presumption of constitutionality or validity.

“The presumption is all in favor of validity. . . . . . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation.”
–Justice Malcolm in U.S. v. Salaveria

However, the presumption that laws and government actions are valid may still be challenged. As long as there is a clear and unequivocal showing of the bases for invalidating a law.

“To justify the nullification of the law or its implementation, there must be a clear and unequivocal, not a doubtful, breach of the Constitution. In case of doubt in the sufficiency of proof establishing unconstitutionality, the Court must sustain legislation because “to invalidate [a law] based on … baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it.” This presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down.”
–Smart Communications v. Municipality of Malvar, 2014, citing Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management

Let’s now go deeper into the levels of scrutiny. Justice Leonen, the brilliant academic that he is, has a dissenting opinion in Zabal v. Duterte, 2019 (Boracay closure case) which has a lecture that sums them up eloquently (as opposed to other explanations from other SC cases). But I’ll try to provide a “for dummies like us” version.

3 Levels of Scrutiny

The levels of scrutiny in our jurisdiction have had their fair share of confusion. There were different interpretations earlier on what laws or governmental actions are valid or not. Thankfully, it has evolved to a now understandable classification of due process analysis.

There are three levels of scrutiny:
1. Rational Basis Test
2. Intermediate review
3. Strict Scrutiny

These levels are distinguished by the importance of the state interest or governmental objective. But what we really want to know is, how do we determine which test to use? It depends on the magnitude or level of freedoms or rights that are being deprived/restricted.

The Rational Basis Test only requires a LEGITIMATE GOVERNMENT INTEREST and that there is only a REASONABLE CONNECTION between it and the means employed to achieve it. I’ll assign a green color for this because it is the LOWEST STANDARD OF REVIEW which makes it the easiest to pass. It should also be noted that government actions undergoing the rational basis test involve the restriction of LESSER FREEDOMS i.e. economic legislation.

For example, a law that bans the practice of medicine without a license is restricting your freedom to pursue a career of your choosing. Such freedom is merely economic in nature. Under the rational basis test, the law’s validity will be upheld because the state has a LEGITIMATE GOVERNMENT INTEREST which is to protect the community at large, and the law prohibiting the unlicensed practice of medicine clearly has a REASONABLE CONNECTION to that interest.

Intermediate Review requires an IMPORTANT GOVERNMENT INTEREST and that there is a SUBSTANTIAL CONNECTION between the interest and the means employed to achieve it. It also requires that there has been an effort to devise the least restrictive means. But take note that the government does not ACTUALLY have to use the least restrictive means, it is enough that they CONCEPTUALIZED the least restrictive means.

This has been used mostly in cases where the equal protection clause may have been violated because of questionable classification of sex, gender, or legitimacy (we’ll discuss this later on under equal protection), but it has also been applied in substantive due process cases in the U.S. (no time to research this). The only Philippine case I know where this is used is in the analysis of free speech wherein a content-neutral regulation is imposed on speech or expression. A more detailed, but similar test (O’Brien test) is used and the discussion can be found here. I won’t elaborate on it here because it’s more fitting for the topic of freedom of expression rather than due process.

Strict Scrutiny is the most famous out of these levels because of so many laws and governmental action that can potentially restrict/deprive our fundamental freedoms. Strict scrutiny applies when at stake are fundamental freedoms like freedom of speech, suffrage, judicial access, religion, right to travel, privacy, the right of parents in the rearing of the youth.

It requires a COMPELLING STATE INTEREST and ACTUALLY employing the LEAST RESTRICTIVE MEANS to achieve the interest. Note that Intermediate review only requires the government to THINK OF the least restrictive means. Strict scrutiny requires that they ACTUALLY employ the least restrictive means. It means that the government has to show or demonstrate why there are no other alternatives or that why all other alternatives are not effective. This, in turn, requires some sound data gathering mechanisms.

A great example of strict scrutiny is Leonen’s Concurring Opinion in SPARK v. Quezon City (2017) where the Right to Travel and the Right of Parents in the Rearing of the Youth is impaired (Come to think of it, Leonen loves discussing the levels of scrutiny, I won’t be surprised if this comes up in the Bar):

WARNING: THIS IS NOT THE PONENCIA (MAJORITY OPINION). THE PONENCIA STRUCK DOWN MANILA and NAVOTAS’ CURFEW ORDINANCES, BUT NOT QUEZON CITY’S. THE PONENCIA ALSO STATED THAT ALL THREE ORDINANCES PASSED THE FIRST PRONG OF STRICT SCRUTINY (COMPELLING STATE INTEREST) AND ONLY QUEZON CITY’S PASSED THE SECOND PRONG (LEAST RESTRICTIVE MEANS), WHILE LEONEN’S CONCURRING OPINION STATES THAT NO ORDINANCE PASSED EITHER PRONG.

First, we identify the rights affected by the governmental action. Justice Leonen identifies two rights : the right to travel and the right of parents in rearing of the youth (as a facet of the right to privacy).

RIGHT TO TRAVEL
“By definition, a curfew restricts mobility. As effected by the assailed ordinances, this restriction applies daily at specified times and is directed at minors, who remain under the authority of their parents.

Thus, petitioners correctly note that at stake in the present Petition is the right to travel.

Article III, Section 6 of the 1987 Constitution provides:
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.”

RIGHT OF PARENTS IN REARING OF THE YOUTH
“Given the overlap of the state’s prerogatives with those of parents, equally at stake is the right that parents hold in the rearing of their children.

There are several facets of the right to privacy. Ople v. Torres identified the right of persons to be secure “in their persons, houses, papers, and effects,” the right against unreasonable searches and seizures, liberty of abode, the right to form associations, and the right against self-­incrimination as among these facets.

While not among the rights enumerated under Article III of the 1987 Constitution, the rights of parents with respect to the family is no less a fundamental right and an integral aspect of liberty and privacy.

Article II, Section 12 characterizes the right of parents in the rearing of the youth to be ”natural and primary.” It adds that it is a right, which shall “receive the support of the Government.”

“Imbong v. Ochoa, affirms the natural and primary rights of parents in the rearing of children as a facet of the right to privacy:

To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child or the right of the spouses to mutually decide on matters which very well affect the very purpose of marriage, that is, the establishment of conjugal and family life, would result in the violation of one’s privacy with respect to his family.[48]

This Court’s 2009 Decision in White Light unequivocally characterized the right to privacy as a fundamental right. Thus, alleged . statutory intrusion into it warrants strict scrutiny.

If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon is the injury to property sustained by the petitioners, an injury that would warrant the application of the most deferential standard – the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons – those persons who would be deprived of availing short time access or wash-up rates to the lodging establishments in question.

. . .

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect …

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen.”


These parts are just explanation of fundamental rights that are affected by the mandatory curfew ordinance:
1. Right to travel– Curfew restricts movement i.e. you can’t go where you want to go if its past (insert time here) P.M.
2. Right of parents in the rearing of the youth– The curfew interferes with the right of parents to raise their children. A parent should determine when it is safe for his/her child to still be out. As a result of interference of the right in the rearing of the youth, it would result in “the violation of one’s privacy with respect to his family.”

The next step is to determine if there is a compelling state interest.

COMPELLING STATE INTEREST

“With incomplete and inconclusive bases, the concerned local government units’ justifications of reducing crime and sweeping averments of “peace and order” hardly sustain a rational basis for the restriction of minors’ movement during curfew hours. If at all, the assertion that curfew restrictions ipso facto equate to the reduction of CICLs appears to be a gratuitous conclusion. It is more sentimental than logical. Lacking in even a rational basis, it follows that there is no support for the more arduous requirement of demonstrating that the assailed ordinances support a compelling state interest.”

In short, the data presented are inconclusive to prove that these cities are overrun by juvenile crime. These ordinances are stating PUBLIC SAFETY as the COMPELLING STATE INTEREST, and that is completely valid. However, without any convincing evidence or data, it’s hard to state that there is a COMPELLING STATE INTEREST in the first place. And with no compelling state interest, it’s absurd to restrict people’s fundamental freedoms.

Let’s move on to the discussion on the use of least restrictive means.

LEAST RESTRICTIVE MEANS

“To reiterate, respondents have not shown adequate data to prove that an imposition of curfew lessens the number of CICLs. Respondents further fail to provide data on the frequency of crimes against unattended minors during curfew hours. Without this data, it cannot be concluded that the safety of minors is better achieved if they are not allowed out on the streets during curfew hours.”

. . .

“Imposing a curfew on minors merely on the assumption that it can keep them safe from crime is not the least restrictive means to achieve this objective. Petitioners suggest street lighting programs, installation of CCTVs in street comers, and visible police patrol. Public safety is better achieved by effective police work, not by clearing streets of children en masse at night. Crimes can just as well occur in broad daylight and children can be just as susceptible in such an environment. Efficient law enforcement, more than sweeping, generalized measures, ensures that children will be safe regardless of what time they are out on the streets.”

In short, the imposition of curfew is not the least restrictive means to public safety. Effective police work and other crime deterrence strategies still exist and should be the means pursued instead of the imposition of a curfew that restricts fundamental freedoms.

I’ll repeat the warning.

WARNING: THIS IS NOT THE PONENCIA (MAJORITY OPINION). THE PONENCIA STRUCK DOWN MANILA and NAVOTAS’ CURFEW ORDINANCES, BUT NOT QUEZON CITY’S. THE PONENCIA ALSO STATED THAT ALL THREE ORDINANCES PASSED THE FIRST PRONG OF STRICT SCRUTINY (COMPELLING STATE INTEREST) AND ONLY QUEZON CITY’S PASSED THE SECOND PRONG (LEAST RESTRICTIVE MEANS), WHILE LEONEN’S CONCURRING OPINION STATES THAT NO ORDINANCE PASSED EITHER PRONG.

The dissection of Leonen’s use of strict scrutiny does not reflect the ponencia/majority opinion. I only used it for a clearer explanation of how to review/scrutinize laws or government actions.

However, because bar exam questions will not usually have the same complex facts as those in the SPARK CASE, I find Leonen’s reasoning sound and very reasonable compared to the ponencia’s. Hence, I’ll follow Leonen’s argumentation in strict scrutiny which puts a much higher premium on data. I call it Leonen’s “STRICTER SCRUTINY.”

You know why? It’s in the last sentence of his Concurring Opinion.

“Of course, nothing in this decision will preclude a stricter review in a factual case whose factual ambient will be different. Accordingly, for these reasons, I concur in the result.”

In other words, the ponencia does not prevent a stricter review in other cases with different facts. Thus, it’s not a crime to use “stricter scrutiny.”

To give an example of how to approach a due process analysis, here’s a quick guide:
1. Determine the rights or freedoms that are restricted/deprived. Is it a fundamental right? Is it merely an economic right? Usually, it just falls within these two. It’s either Strict Scrutiny or Rational Basis in due process analysis. The one that falls under intermediate scrutiny is a content-neutral regulation of speech or expression under a more detailed O’Brien Test which can be found here.

2. Determine the Government Interest. For Rational Basis, is it legitimate? For Strict Scrutiny, is it Compelling?
Compelling state interest include public health and safety, public order, national security, morals, respect for fundamental rights, military necessity. Everything else that is not utterly stupid like “to make animals prettier” is legitimate.

3. Determine if the means involved are Reasonably Connected to the government interest in the case of the Rational Basis Test or the Least Restrictive in the case of Strict Scrutiny.
For the former, simply check if it makes sense. For example, if the interest is public economic stability, how can the means be reasonably connected if you order people to dress properly?
For the latter, check if there are other possible means that can be less restrictive. If the interest is public safety, why order a curfew when you can improve police work?

That’s it for due process. Let’s move on to the Equal Protection Clause next time.