What’s rational about rational basis review?

The following is written for our same-sex marriage symposium by  Ruthann Robson, Professor of Law & University Distinguished Professor at City University of New York (CUNY) School of Law. Ruthann teaches  Constitutional Law as well as Sexuality and Law.   Her books include the just-published three volume edited set of international materials, The Library of Essays on Sexuality and Law,  Sappho Goes to Law School, Lesbian (Out)Law, and a forthcoming book on constitutional issues from Cambridge University Press.   She is the co-editor of Constitutional Law Professors Blog.

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The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.

There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation.  However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis.  Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.”   Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”

Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court.   Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications.   The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.

It’s most likely that the Supreme Court will use rationality review, or some form of it, when reviewing the exclusion of same-sex couples from marriage.   The classic formulation of the rational basis test is an ends/means test requiring that the government interest must be “legitimate” and the means chosen to effectuate that interest must be “reasonably” related to that interest.  This is the formulation for review under the equal protection and due process challenges at issue in same-sex marriage cases.  Rational basis is also operative when courts review challenges to laws based upon the First Amendment and the Fifth Amendment’s Takings Clause. A rational basis test is also used when the Court reviews whether Congress has exceeded its enumerated powers under the Commerce Clause (United States v. Lopez),  the Necessary and Proper Clause (United States v. Comstock), or the Copyright Clause (Eldred v. Ashcroft).

Even when there is agreement on the articulation of the rational basis test, which is not as consistent as one might hope, its application might be characterized as irrational.   In Ysursa v. Pocatello Educ. Ass’n, the Court deemed legitimate a state interest in avoiding the appearance of state involvement in partisan politics, and found that this interest was reasonably related to a prohibition of payroll deductions for union dues by public  – and by private – employers.   In Railway Express Agency, Inc. v. New York, the Court deemed legitimate a government interest in traffic safety, but held the city could reasonably believe that drivers would be less distracted by owner-advertising on vehicles and more distracted by the same advertising if the vehicle was owned by someone else.   In the 1896 case of Plessy v. Ferguson the Court held that the Louisiana legislature’s mandate of separation of the races on railways was “reasonable”; the approved purpose was conforming to the “established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”

In the context of laws that limit legally recognized marriages to opposite-sex couples, the proffered legitimate goal telescopes into an interest in maintaining heterosexual hegemony.   For example, in seeking to “defend” marriage against attack by non-heterosexuals, Congress specifically articulated its purposes of encouraging responsible [heterosexual] procreation and child-bearing; defending and nurturing the institution of traditional heterosexual marriage; defending traditional [heterosexual] notions of morality, and preserving scarce resources [for heterosexuals].

Yet whether or not one considers these interests “legitimate” is not an inquiry solved by logic.  Instead, it rests upon whether one believes that heterosexuality is the preferred form of human sexuality ­and whether one believes the government, federal or state, should act to guarantee heterosexuality.   Moreover, these interests raise the specter that they are not legitimate because they are based on animus or the desire to harm a politically unpopular group of gay men and lesbians.  In United States Department of Agriculture v Moreno, the Court found a congressional definition of “household” was not legitimate because the legislative history indicated the purpose of the definition was to exclude “hippies” from receiving food stamps.

This purpose prong of the rational basis test applied to DOMA and Proposition 8 also raises the problem of the governmental entity itself.   Congress explicitly stated its interests in DOMA, although in Gill v. Office of Personnel Management the Obama Administration, then defending DOMA, sought to update the congressional interests.  As Judge Tauro noted, the United States was arguing that “the Constitution permitted Congress to enact DOMA as a means to preserve the ‘status quo,’ pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage.”  Judge Tauro rejected such an interest as legitimate given the federal government’s exceedingly limited role in matters of marriage and family law, a subject within the province of the states under the Tenth Amendment.   Judge Tauro might also have analogized to the gender classification case of United States v. Virginia (VMI) in which the Court repudiated governmental justifications that were “invented post hoc in response to litigation,” albeit under a higher standard than rational basis review.

Because Proposition 8 was a state-wide voter referendum, the government interests are not articulated with specificity.  If discerning legislative intent is difficult, certainly discovering intent of voters is even more difficult.  Moreover, because the state of California refused to defend Proposition 8 in the federal challenge, it was left to the proponents in Perry v. Schwarzenegger to articulate the interests of the “government.”  According to pleadings and quoted by Judge Walker, these interests were reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; proceeding with caution when implementing social changes; promoting opposite- sex parenting over same-sex parenting; protecting the freedom of those who oppose marriage for same-sex couples; treating same-sex couples differently from opposite-sex couples; and “any other conceivable interest.” Presenting only two witnesses, both experts, the proponents focused on the interest of heterosexual marriage as producing offspring who were biologically related to both partners in the marriage.

Assuming there is a legitimate interest, applications of the rational basis test proceed to determine whether the means chosen can be said to reasonably (or rationally) serve that interest. For example, if one accepts as a legitimate governmental goal the encouragement of heterosexual procreation and child-rearing, then the extension of marriage to opposite-sex couples who do not (or cannot) have children becomes subject to different notions of what is “reasonable.”  The denial of marriage to same-sex couples who do have children also becomes subject to different notions of reasonableness, especially as it connects to heterosexual procreation and marriage.  For Judge Walker in Perry v. Schwarzenegger, the logical link was non-existent: “Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.”  In other words, the denial of marriage to some people will not affect the actions of other people.

Yet another court found that that the inducement of marriage could rationally be reserved for opposite-sex couples because they needed it more.  In 2006, New York’s highest court in Hernandez v. Robles contended that because heterosexual relationships lead to children and that because “such relationships are all too often casual or temporary,” the legislature could “choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.”  The court reasoned that this inducement rationale “does not apply with comparable force to same-sex couples” who can become “parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.”  Thus, the New York Legislature “could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more.”  This past June, the New York Legislature apparently changed its sense of the inducement rationale and passed the Marriage Equality Act. The New York State Attorney General has filed an amicus brief in Windsor advocating the unconstitutionality of DOMA Section 3 because New York has “consistently expressed and implemented its commitment to equal treatment for same-sex couples.”  Interestingly, the brief does not mention Hernandez v. Robles.

The existence of a reasonable relationship (or any relationship at all) and the legitimacy of the purpose are not simple logical deductions accomplished at the level of proof theory mathematics.  The Proposition 8 proponents’ motion to vacate the judgment in Perry after Judge Walker revealed his sexual minority status expresses this reality.  In denying the motion, the new district judge assigned to the case now known as Perry v. Brown stated a judge could be impartial and was “capable of rising above any personal predisposition.”   However, there is also a larger problem.  If Judge Walker is disqualified for “bias,” then all judges must be.  While bias allegations are more likely to be leveled against minorities, including women, as the judge ruling upon the motion to vacate noted, no decision-maker is immune.  Indeed, the purposes and reasonable relationships argued by the proponents of Proposition 8 and the BLAG now defending DOMA implicate everyone.  If one is married or not married, if one is a parent or not, if one is a parent who is married or not, if one was a child of parents who were married to each other throughout one’s childhood or not, one has particular experiences and interpretations of those experiences that would influence one’s assessment of “rational basis.”

This does not mean that there is unbridled discretion and the absence of any standards.  However, it does mean that the interests one is willing to recognize as legitimate for governmental action and the inferences one is willing to make are not purely rational.  Marriage, family, and sexuality are not susceptible to scientific calculations.   Neither is law.