Strict scrutiny requires the government to show a compelling state interest for its action. The next level of scrutiny is used in limited situations, such as where the rights at issue have some origin in the Montana constitution, but are not found in the Declaration of Rights. This middle tier of scrutiny requires the State to demonstrate that its classification is reasonable and that its interest in the classification is greater than that of the individual's interest in the right infringed. The lowest level of scrutiny is applicable to examination of rights not determined to be fundamental under the Montana constitution, and not worthy of middle tier scrutiny. This test requires the government to show that the objective of the statute is legitimate and bears a rational relationship to the classification used by the legislature.
Rational basis is easily satisfied.
With respect to the level of scrutiny to be applied to the challenged statute, Defendants contend that the Court should apply the middle level of scrutiny, because their rights with respect to this constitutional challenge are included in the Montana Constitution, Article XII, Section 1. This provision does not create any specific right in individuals with respect to fencing their livestock. It simply directs the legislature to enact legislation to protect the agriculture industry. It is questionable whether the challenged legislation is even subject to equal protection analysis. See Kidder .