Rational Basis Test Research Articles

Horizontal and Vertical Equity in Taxation as Constitutional Principles: Germany and the United States Contrasted

Germany's Basic Law assigns primary jurisdiction over constitutional issues to Germany's Constitutional Court and requires other courts to suspend their proceedings and refer constitutional issues that are critical to resolution of any pending case to the Constitutional Court. In the United States, the Supreme Court has broad appellate and, in some cases, original jurisdiction; and its authority to review legislative action for conflict [*262] with the Constitution became clear early in the Court's history. Unlike Germany, however, lower courts also have jurisdiction to decide constitutional issues, subject of course to eventual Supreme Court review.While the U.S. Supreme Court has resolved many tax controversies, with taxpayers raising constitutional questions in a number of cases addressing questions of federal tax law, only infrequently has the Court found a federal taxing statute to violate a constitutionally protected right or privilege. Rarely has the Supreme Court looked to the Constitution and decided that a federal tax law violated the Constitution. Never has the Supreme Court held a federal tax law to conflict with the Bill of Rights. Many more decisions involve challenges to state tax statutes as in conflict with the U.S. Constitution. Often those state law cases combine claims under several provisions of the Constitution, including the Commerce Clause, Due Process, and Equal Protection. In reviewing state tax [*263] statutes for compliance with constitutional standards, the Court consistently has applied its "rational basis test," its least intrusive standard of review. Under that test, a statute is valid so long as the legislature has a rational basis for its enactment. The decisions predominantly uphold the state taxing statute. Occasionally, the Court limits states' taxing power or their tax collection authority over non- residents.

Rodzaje testów judicial review a zasada proporcjonalności

Judicial review in the jurisprudence of the US Supreme Court can take the form of one of three formulas for examining an act or action of an authority (strict scrutiny test, intermediate scrutiny test, or rational basis test). In the context of the constitutional review each of these tests requires an analysis, of three essential aspects: what kind of individual interest is limited, what form of public interest legitimation is required, and how the means and the purpose so indicated are related. A detailed analysis of these standards of proportion, jurisprudentially developed and evolutionarily tightened, in confrontation with the principle of proportionality used in European constitutions (and documents on international protection of human rights) allows to formulate theses about which standard is stronger, which one creates a barrier providing better protection of individual autonomy, and which is more resistant to ‘steps backwards’ in this respect.

Regulatory Autonomy under the WTO Agreement on Sanitary and Phytosanitary Measures: Implications of Korea–Import Bans, and Testing and Certification Requirements for Radionuclides

AbstractThe recent WTO dispute case, Korea–Import Bans, and Testing and Certification Requirements for Radionuclides, illustrates complex legal issues and significant political implications associated with the regulatory autonomy of a sovereign country under the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement). There has been constant tension between the sovereign right of a WTO member state to determine its own appropriate level of protection (ALOP) and the regulatory constraints imposed under the SPS Agreement to prevent abuse and disguised trade protection. The case emerged from this tension and raises questions on the extent of the regulatory autonomy in the application of an SPS measure. This article addresses these questions and examines the criteria for the qualitative standards for the ALOP, the question that the Appellate Body decision did not fully resolve. The criteria for the qualitative ALOP standards affect the regulatory autonomy significantly under the current SPS rules as they determine the manner and the extent to which a Member may meet the sensitive public interests in the application of an SPS measure. The article proposes a rational basis test to restrain abuse of SPS measures while preserving the regulatory autonomy protected under the SPS Agreement.

THE IMPACT OF THE SUPREME COURT’S OMNICARE DECISION ON AUDITED FINANCIAL STATEMENT DISCLOSURE

Since the enactment of the Securities Act of 1933 and 1934, both the legal system and the accounting profession have struggled with the question, “to what extent accountants should rely on the statements of other accounting and non-accounting experts and when should they include parts of expert’s written statements in financial statement disclosures.” The Supreme Court considered this issue in Omnicare v. Laborers District Council Construction Industry Pension Fund (2015) (hereafter, Omnicare). The Omnicare decision refined the expectations of preparers and external auditors working on prospectuses for U.S. registrants. Omnicare considered disclosures in Omnicare’s registration statement regarding their opinions of their perceived compliance with federal regulations and laws. After Omnicare was charged with violations, the Court considered when opinions in registration statements could be treated as misstatements of material fact that could lead to accountant liability. The clarification to accounting disclosures is important for limiting liability for future registrants as well as for auditors who express an audit opinion on financial statements contained in registration statements. Omnicare created a new rational basis test which is precedential to future cases deciding whether an opinion statement included in a registration statement becomes a misstatement of fact or the lack of an opinion statement constitutes a material omission. Therefore, the rational basis test should be considered by accountants in preparing and auditing registration and post-registration statements, and this article contributes to the accounting and auditing literature by providing new suggested language for incorporation into SEC guidelines and/or PCAOB standards going forward.

The Color of Collateral Damage: The Mutilating Impact of Collateral Consequences on the Black Community and the Myth of Informed Consent

The rights of the convicted have long been constrained by the relentless imposition of collateral consequences of criminal convictions. More specifically, collateral consequences of drug convictions have a disparate impact on the Black community due to over-policing of Black neighborhoods. Consequently, Black people are over-prosecuted, leading to more convictions and ultimately making them the primary victim of collateral consequences. Certain collateral consequences almost exclusively affect Black people and are strikingly similar to Jim Crow laws. Similar to Jim Crow laws, these collateral consequences almost exclusively prohibit the Black convicted from public housing, welfare assistance, financial aid, the ability to vote, the ability to receive certain jobs and licenses, and more. Collateral consequences are considered categorically different from forms of direct punishment like fines, jail time, and probation. Due to this deceptive distinction, there is no notice requirement for collateral consequences at the plea stage. Thus, many defendants will accept deals for guilty pleas, completely unaware that collateral consequences will affect them for what could be the rest of their lives. In regard to this mockery of justice, this Article implores the argument that the informed consent requirement, as it stands, is a myth. This article discusses the constitutional implications surrounding the prejudicial imposition of collateral consequences and the blurred distinction made between collateral consequences and direct punishment. In doing so, this article proposes (1) Congress employ a legislative overhaul to remove prejudicial collateral consequences (2) Supreme Court change the standard of judicial review from the rational basis test to strict scrutiny and extend their holding in Padilla v. Kentucky to apply to all collateral consequences, and (3) Federal and State legislators enact legislation aimed at placing procedural safeguards—like a notice requirement—at the plea stage.

How the Rational Basis Test Protects Policing for Profit

Since the police shooting of Michael Brown in 2014 and the civil unrest that followed, numerous lawsuits have challenged laws that use the government’s ability to impose fines and fees for reasons other than the protection of the public. These challenges have usually raised equal protection challenges to these laws—that is, that the laws punish the poor more harshly than others. The challenges have been unsuccessful, largely because courts examine these laws using “rational basis review,” a standard that is highly deferential to the government and one in which the courts themselves are often required to actively advocate for the government’s position. This article explains these challenges, outlines the critiques of rational basis review, and argues that courts should abandon the use of this standard in cases in which punitive sanctions fall more heavily on the poor than others.

Regulatory Autonomy under the WTO Agreement on Sanitary and Phytosanitary Agreement: Implications of Korea – Import Bans, and Testing and Certification Requirements for Radionuclides

The recent WTO dispute case, Korea – Import Bans, and Testing and Certification Requirements for Radionuclides (Korea – Radionuclides), illustrates complex legal issues and significant political implications associated with the regulatory autonomy of a sovereign country under the WTO Agreement on Sanitary and Phytosanitary Agreement (SPS Agreement). There has been constant tension between the sovereign right of a WTO member state to determine its own appropriate level of protection (ALOP) and the regulatory constraints imposed under the SPS Agreement to prevent abuse and disguised trade protection. The case emerged from this tension and raises questions on the extent of the regulatory autonomy in the application of an SPS measure. This article addresses these questions and examines the criteria for the qualitative standards for the ALOP, the question that the Appellate Body decision did not fully resolve. The criteria for the qualitative ALOP standards affect the regulatory autonomy significantly under the current SPS rules as it determines the manner and the extent of which a Member may meet the sensitive public interests in the application of an SPS measure. The article proposes a rational basis test to restrain abuse of SPS measures while preserving the regulatory autonomy protected under the SPS Agreement.

Evaluating Emergency Takings: Flattening the Economic Curve

Desperate times may breed desperate measures, but when do those desperate measures undertaken during emergencies trigger the Fifth Amendment’s requirement that the government provide just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power” — a sovereign government’s power to regulate and restrict property’s use in order to further the public health, safety, and welfare — and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. An invocation of police power does not answer the compensation question at all, but is merely the predicate issue: all government actions must be for the public health, safety, or welfare, in the same way that an exercise of eminent domain power must be for a public use. In “normal” times, it is very difficult to win a regulatory takings claim for compensation. In the midst of emergencies — real or perceived — the courts are even more reluctant to provide a remedy, even where they should, and emergencies are a good time to make bad law, especially takings law. This article provides a road-map for analyzing these questions, hoping that it will result in a more consistent approach to resolving claims for compensation that arise out of claims of emergencies — real or perceived. This article analyzes the potential takings claims stemming from emergency measures, mostly under current takings doctrine. What type of claims are likely to succeed or fail? Can a better case be made analytically for compensation? Part I summarizes the economic “flattening the curve” principle that motivates takings claims for compensation. Part II sets out the prevailing three-factor Penn Central standard for how courts evaluate claims that a health, safety, or welfare measure “goes too far,” and requires compensation as a taking, examining the character of the government action, the impact of the action on the owner, and the extent of the owner’s property rights. Deep criticism of Penn Central is beyond the scope of this article, and I will not here do more than accept it as the “default” takings test. But I do argue that the government’s motivation and reason for its actions — generally reviewed under the “rational basis” standard — should not be a major question in takings claims. Rather, as this article argues in Part III, the government’s emergency justifications should be considered as part of a necessity defense, and not subject to the low bar of rational basis, but a more fact and evidence driven standard of “actual necessity.” Part IV attempts to apply these standards and examines the various ways that emergency actions can take property for public use: commandeering, occupations of property, and restrictions on use. I do not conclude that the approach will result in more (or less) successful claims for compensation, merely a more straightforward method of evaluating emergency takings claims than the current disjointed analytical methods. In sum, this article argues there is no blanket immunity from compensation simply because the government claims to be acting in response to an emergency, even though its reasons and actions may satisfy the rational basis test. Instead, claims that the taking is not compensable because of the exigency of an emergency should only win the day if the government successfully shows that the measure was actually needed to avoid imminent danger posed by the property owner’s use, and that the measure was narrowly tailored to further that end.

Separation, Supremacy, and the Unconstitutional Rational Basis Test

Using a judicial tool known as the “rational basis test,” federal courts uphold a federal or state statute as constitutional so long as it rationally relates to a legitimate government interest. In this Article, I contribute a new theory to a growing body of scholarship questioning the validity of the rational-basis test. I argue that the test violates the structural separation of powers and the Supremacy Clause of the U.S. Constitution. Article III of the Constitution vests federal courts — and no other branch — with the “judicial power.” This power entails applying law to decide particular disputes; interpreting the law in order to apply it; and, when faced with multiple conflicting sources of law, applying higher-order law and rendering lower-order law void or unenforceable. On that last point, the Supremacy Clause instructs that the Constitution prevails over contrary federal and state statutes. I argue that when employing the rational-basis test in a case challenging a statute, courts abdicate part of their judicial power and duty. Instead of fully exercising the judicial power to ascertain the best, fairest, and correct interpretation of the constitutional provision at issue, they merely set a zone of deference, within which all rational interpretations reside. The abdicated judicial power is effectively transferred to Congress or the state legislature (as the case may be), which then exercises the remnant judicial power — much like how Chevron deference results in transfer of judicial power to the executive branch. When used to review a federal statute, this framework violates the separation of powers. And when used to review any statute, it subverts the Supremacy Clause’s established legal hierarchy by elevating the status of lower-level statutes and illegitimately demoting the Constitution.

The Future of Land Use Regulation: A Tribute to Callies One Small Point of Departure: Exactions and Impact Fees

There is a continuing debate after the Koontz v. St. Johns River Water Management Dist., 133 S.Ct. 2586 (2013) decision as to whether legislatively-enacted impact fees should be subject to Nollan/Dolan scrutiny or whether only adjudicative actions in the form of physical or monetary exactions will require this heightened scrutiny. Nollan/Dolan heightened scrutiny developed when the Court in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) held that the California Coastal Commission’s requirement that the Nollans dedicate a easement across their beachfront property in exchange for a permit to rebuild a new property did not have an “essential nexus” to the effects of the proposed land use. The Court in Dolan v. City of Tigard, 512 U.S. 374 (1994) refined this test to require that in addition to the exaction having an essential nexus, “that an adjudicative exaction requiring dedication of private property must also be “rough[ly] proportiona[l]” ... both in nature and extent to the impact of the proposed development.” In Koontz, the Court extended the use of Nollan/Dolan scrutiny to apply to monetary as well as physical exactions. Practitioners and scholars anticipate that this issue will come before the U.S. Supreme Court once litigation presents the appropriate case for the Court to give guidance to state and federal courts. This article, as well as the author’s prior article, When Local Government Misbehaves, 2016 Utah L. Rev. 105, argues that courts should apply deferential scrutiny to legislative impact fees. Instead of subjecting such legislative fees to the Nollan/Dolan test, courts should apply applicable state standards, which range from a deferential rational basis test in California to a searching inquiry in North Carolina. As explained by the Court in Koontz, exactions pose a special concern because “land-use permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take. . . . [and] [e]xtortionate demands of this sort frustrate the Fifth Amendment right to just compensation.” Therefore, courts should apply heightened scrutiny to exactions in order to “provide important protection against the misuse of the power of land-use regulation,” however state and local legislative actions should continue to receive judicial deference. Takings challenges to legislative action should remain subject to the per se takings tests under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (finding a taking “where government requires an owner to suffer a permanent physical invasion of her property”) and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (finding a taking where regulations “completely deprive an owner of ‘all economically beneficial us[e]’ of her property”), or to the Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) three-factor test (based on the “magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests”), if it constitutes a partial taking. Until the Court speaks directly to the distinction between adjudicative exactions for individual development permitting and legislative impact fees designed to offset general development externalities, local governments, courts, litigators, and scholars will continue to struggle with whether the Nollan/Dolan test applies to municipal impact fees.

Back to the Future of Land Use Regulation

This essay is a slightly modified version of the remarks delivered at the 14th Annual Brigham-Kanner Property Rights Conference in Williamsburg, Virginia in October 2017. As always, I bring you greetings from the land of Midkiff, the land of Kaiser Aetna. The jurisdiction in which the legislature thought it was a good idea to try and drive gasoline prices lower by adopting a rent control statute for certain gas stations on the theory that the station owners would naturally pass on the savings to consumers. As you recall, the United States Supreme Court in Lingle held that this scheme should not be analyzed under the Just Compensation Clause, but under the Due Process Clause. The Court concluded that as a question of due process and government power, Hawaii’s scheme survived the rational basis test, even though in reality—and predictably—the statute did not come anywhere close to accomplishing what it purportedly set out to accomplish: Hawaii continues to have some of the highest gasoline prices in the nation, thank you very much. I raise all this both as an introduction to my remarks and as background for our panel, “The Future of Land Regulation and Tribute to David Callies.” But before we can talk about land use law’s future, we must delve into its past. Because the rational basis test, which we have now seen over the years inexorably creep into takings and eminent domain law—had its genesis as we all know, in zoning and land use law. Today, I’ll focus on two cases, one old, one new.

Reasonableness Review of Executive Orders

This article addresses the question of how courts should assess the reasonableness of executive orders. Prior to the New Deal, a unified framework applied to assessment of all executive and legislative decisions, including executive orders. In the 1930s and 40s, a dichotomy began to develop. The Supreme Court created a highly deferential rational basis test to govern its review of legislation’s reasonableness. On the other hand, the Court applied a much less deferential arbitrary and capricious test to review the reasonableness of administrative agency rulemaking under the Administrative Procedure Act. This dichotomy left open the question of what standard should govern judicial review of executive orders. This article addresses this question in the context of statutory executive orders, rather than orders relying on implied or express independent constitutional authority. It combines a constitutional analysis of separation of powers, due process, and the nondelegation doctrine with an analysis of relevant administrative law. This analysis provides a constitutional framework for understanding how to review executive orders for reasonableness. In the end, this article concludes that the need for “faithful” law execution in light of due process and separation of powers considerations leads to the conclusion that the courts should apply arbitrary and capricious review to executive orders issued pursuant to statutory authority, rather than the rational basis test that applies to legislation.

Omnicare v. Indiana State District Council and Its Rational Basis Test for Allowing for Opinion Statements to Be a Misleading Fact or Omission Under Section 11 of the Securities Act of 1933

This article examines when statements in a registration statement, couched as opinion, can and cannot be considered to be misstatements of material fact that could lead to liability under Section 11 (and potentially other sections) of the Securities Act. The rest of this paper is formatted as follows. We review the Omnicare case, followed by the key cases in the Second, Third, Ninth, and Sixth Circuit Courts of Appeals. The Second, Third, and Ninth Circuits have all required that, in order for there to be an actionable claim under Section 11, the plaintiff must plead not only that the statement or omission was false, but also that the defendant had subjective knowledge that its opinion was false. The Sixth Circuit, although later reversed by the Supreme Court, applied a strict liability interpretation of Section 11 and required only that the fact or omission be false or misleading. The split decisions among the circuits may be the reason that the Supreme Court granted certiorari. Then, we explain the implications of these decisions to future registrants and to professionals preparing opinions that are to be included in registration statements. This article is important to future registrants and opining professionals because of their liability implications. We conclude with the assumption that future cases will decide how to apply the new rational basis test created by the Supreme Court in interpreting when an opinion statement becomes a misstatement of material fact, or leads to an omission that renders a registration statement false or misleading in violation of Section 11.

When Local Government Misbehaves

his Article addresses one of the lingering questions following the Supreme Court’s decision in Koontz v. St. Johns River Water Management District. In that land use case, the Court held that proposed local government monetary exactions from property owners to permit land development were subject to the same heightened scrutiny test as imposed physical exactions. The Court left unanswered the question of how broadly this heightened scrutiny should be applied to other monetary obligations imposed by the government. The Article argues that “in-lieu” exactions that are individually assessed as part of the permitting process should be treated differently than the impact fees that are developed through the legislative process and are applied equally to all developers without regard to a specific project. Accordingly, Koontz’s application should be limited to “the special context of land-use exactions” during a permitting process rather than be extended to all regulatory monetary obligations. The Article begins by identifying the various levels of scrutiny applied to land use decisions and shows how these levels are designed to prevent the abuse of power, particularly when actions are exercised at the individualized level. It concludes by suggesting that exactions that result in a permanent physical occupation of real property should be subject to heightened scrutiny. However, only administrative, individualized, monetary exactions, designed to replace a physical exaction, such as the kind involved in Koontz, should be subject to heightened scrutiny to control the potential for abuse. Legislatively determined monetary conditions such as impact fees, but not taxes, should be subject to review under state statutory or judicial standards, which range from a rational basis test to more stringent tests, such as the dual rational nexus test or the Nollan/Dolan test. In the absence of a state standard of review, legislatively enacted impact fees challenged in federal court should be analyzed under the deferential rational basis test for land use regulation.

The Due Process Right to Pursue a Lawful Occupation: A Brighter Future Ahead?

The ghost of Lochner hangs over due process challenges to laws that restrict entry to occupations. In an attempt to vanquish the remnants of Lochner and similar pre-New Deal cases, the Supreme Court established and applied a weak rational basis test to evaluate all economic regulation, including occupational regulations, leaving very little room for successful challenges.Recent precedent, however, suggests that courts are becoming more protective of the right to pursue an occupation. The gradual undermining of standard critiques of Lochner and its progeny on the one hand, and the spread of costly and restrictive occupational licensing to jobs that pose minimal risk to public well-being on the other, have ignited debate over whether strict judicial deference to even the most arbitrary and abusive licensing laws is appropriate.Meanwhile, the unofficial demise of the fundamental/non-fundamental rights dichotomy in the Supreme Court’s due process jurisprudence, combined with a rising generation of judges, liberal and conservative, who may not share their predecessors’ reflexive hostility to meaningful judicial oversight of occupational restrictions, provide a glimmer of hope that the right to pursue a lawful occupation free from unreasonable government regulation will soon be rescued from constitutional purgatory.

Dropping the Other Shoe:Obergefelland the Inevitability of the Constitutional Right to Equal Marriage

After having invalidated the federal Defense of Marriage Act (DOMA), the U.S. Supreme Court “dropped the other shoe” inObergefell v. Hodgesby declaring the exclusion of same-sex couples from marriage at the state level unconstitutional. Written by Justice Kennedy, the majority opinion heavily relied on the dignity-bestowing character of marriage to show why this exclusion is so harmful. But this strategy comes with a cost: it inflicts a stigma even as it conveys recognition—a drawback that an equality analysis can avoid. Respondents had argued that opening marriage dangerously disconnected marriage from procreation, both the historical reason for and the essence of marriage. In finding that they had failed to provide evidence for the harmful outcomes they described, the majority not only provided the rational basis test with a new kind of “bite.” It also asserted that tradition or religious beliefs were not enough to justify exclusion. Once secular purposes define marriage and rational reasons are required to regulate access, the road to marriage equality opens wide. As the line of cases leading up toObergefellsuggests, and developments in Germany, Austria, and other jurisdictions confirm, equality works as a one-way ratchet—albeit without necessarily including polygamy and incest. Crucially, equality changes the focus: From an equality perspective, the harm lies not in the exclusion from a dignity-conferring institution, but in the suggestion that the excluded group is not worthy of participating in it and does not deserve the recognition and benefits associated with it. Instead of aspiring to achieve dignity through marriage, in this view same-sex couples claim recognition as free and equal citizens. Discrimination on the basis of race, gender, or sexual orientation subsumes an individual under a group category whose purported characteristics are systematically devalued, thus refusing to appreciate a person as an individual. It is this denial of recognition that conveys harm to the dignity of the individual above and beyond the respective disadvantage suffered. Thus taken with equality, dignity does not have the exclusive effect it has in isolation, as struggling against degrading exclusion stresses common traits.

The Undertaker's Cut: Challenging the Rational Basis for Casket Licensing

Occupational licensing laws, once only applied to a narrow range of professional occupations, were extended to the funeral industry in the U.S. in the 19th and 20th centuries under the justification that they create professional standards that protect the deceased, their loved ones, and the general public. Funeral licensing now covers embalmers, funeral directors, and even casket sellers. Rather than protecting the public, licensing in the funeral industry in practice has often codified and protected the very abuses it was alleged to protect against by erecting barriers to entry and reducing competition. Casket licensure has been upheld in some U.S. courts under the rational basis test on the grounds that it promotes public health, protects consumers from fraud, and even that protectionism of an industry is a legitimate function of government. We challenge the rational basis for casket licensure by examining the Oklahoma’s 10th Circuit Court’s Powers v. Harris case, which used the rational basis test to uphold casket licensure restrictions on the online sale of caskets.

Mahkamah Konstitusi dan Hak Untuk Bebas Dari Perlakuan Diskriminasi

Judicial interpretation of the right to be free from discrimination is a central issue in the practice of judicial review of the constitutionality of legislation by the MKRI. This article tries to describe and systematize this practice and then to restate the legal principles as it is stated by the MKRI into its case law. This article finds that, as a matter of principle, the MKRI adopts two main tests i.e. strict scrutiny and rational basis test to determine whether a legislation is contrary to the principle of non-discrimination

Eldred & the New Rationality

Historically, the rational basis test has been a constitutional rubber stamp. In Eldred v. Ashcroft and Golan v. Holder, the Supreme Court applied the rational basis test and respective held that Congress could extend the copyright term of existing works and restore copyright protection of public domain works, despite evidence that Congress intended to benefit copyright owners at the expense of the public. But in Lawrence v. Texas, and United States v. Windsor, the Supreme Court seems to have applied the rational basis test and held that state and federal laws were unconstitutional because they were motivated by animosity, and in Obergefell v. Hodges, it held that states must license marriages between two people of the same sex, because there is no legitimate basis to refuse. This essay argues that Lawrence, Windsor, and Obergefell may reflect the emergence of a “new rationality” that authorizes courts to consider legislative intent when evaluating the constitutionality of legislation. If so, perhaps the Court should reconsider Eldred and Golan.

The Burger Court and the conflict over the rational basis test: The untold story ofMassachusetts Bd. of Retirement v. Murgia

When discussing the evolution of the rational basis test, few if any commentators would rank Massachusetts Bd. of Retirement v. Murgia with San Antonio Indep. School District v. Rodriguez and Railroad Retirement Bd. v. Fritz and City of Cleburne v. Cleburne Living Center in terms of doctrinal significance. In Murgia, the Court rejected an equal protection challenge to a Massachusetts statute that required police officers to retire at age 50, but made no effort to refine the parameters of rational basis analysis. Instead, the brief per curiam opinion simply noted that the rational basis test was “a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one” and that “perfection in making the necessary classifications is neither possible nor necessary.”In fact, however, the internal deliberations of the Court in Murgia played a central role in the evolution of modern rational basis jurisprudence. During those deliberations, Justices William Brennan and Lewis Powell made a concerted effort to unite a majority of the justices behind an opinion that would have committed the Court to a version of the rational basis test that was significantly less deferential than the approach that had been followed by the Warren Court. When this effort failed, it became clear that the justices were irrevocably divided, and that no single, definitive formulation could command majority support. Thus, the members of the Court simply agreed to disagree, and the core issue remained unresolved for the remainder of Burger’s tenure.