Home > Legal Issues > The Rational Basis Test grows another baby tooth!

The Rational Basis Test grows another baby tooth!

When dealing with constitutional questions regarding due process or equal protection issues (related to the 5th and 14th amendments), U.S. courts have taken a three-level approach, which stems from constitutional jurisprudence (i.e., not the Constitution per se).  Where dealing with a protected class of people, courts will review the law using “strict scrutiny,” where dealing with a “quasi-suspect” class of people, courts will review the law using “intermediate scrutiny,” and where dealing with anything else, courts look to determine whether the government has a “rational basis” for passing the law that it did.

The law is full of zany things like “rational basis testing” that grow like 220 years of kudzu over the original meaning of the Constitution.  But the rational basis test has been one of the biggest jokes among them.  It requires that government action be “rationally related” to a “legitimate” government interest.  However, “legitimate” simply means whatever the court can think up that seems like it would be legitimate regardless of whether it was the actual purpose of the law

Similarly, a “rational” relation does not mean that it has to make sense, but merely that it has to appear to make sense to the lawmakers.  For example, if our legislators thought that printing and distributing $1 million for every man, woman and child in the country would serve the general welfare (by making everyone “rich”), that would be absolutely rational according to the court test.  Never mind that it’s so far from rational, properly speaking, as to be laughable.

In fact, it is widely known among litigators that if comes down to a rational basis test, the government will almost always win.  There is truly no limit to the mental gymnastics one can do in order to make a law seem “rationally” (but not rational) related to a “legitimate” (but not legitimate) government purpose.

Which is why it’s nice to see cases like this one from Florida, In re: Matter of Adoption of XXG and NRG, in which the Florida Attorney General declined to appeal a lower-court decision overturning Florida’s blanket ban on gays adopting babies..  See the official opinion here.  I have no strong opinions one way or the other on adoption issues; they’re generally outside my realm of experience and expertise.  However, I am quite interested in the legal precedent in that the government was unable to prove to the satisfaction of the courts that any “rational basis” existed for their law.  In a case where the deck was stacked very heavily in favor of the government, the government could not pull through.

For some years now, beginning perhaps with Romer v. Evans, there has been a movement in some legal and judicial circles to give rational basis test “teeth.”  I think that would be a small, yet very significant, step in the right direction.  The more judicial skepticism brought to the whimsy of the lawmakers, the more assiduously asserted our Constitution will be.  And since our Constitution exists to protect us from our government, that is a very good thing.

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