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Thursday, August 3, 2006

Hate the Rational Basis Test?

Posted by on August 3 at 12:46 PM

If you’re upset about the dimwitted “rationale” that the WA Supremes dreamed up to excuse the legislature’s discriminatory Defense of Marriage Act, you may find (limited) solace in the following law review article (warning: that’s a PDF; for the NYU Journal of Law & Liberty’s table of contents, go here).

Quoth aggressively libertarian attorney Clark Neily,

The original legal definition of insanity is the inability to tell right from wrong. So it is the first irony of the “rational” basis test that it is, according to that definition, insane. The word “basis” is likewise a misnomer, since the rational basis test is concerned not with the actual basis for challenged legislation, but with speculative and hypothetical purposes instead. Finally, the word “test” is inappropriate, at least insofar as it suggests some meaningful analytical framework to guide judicial decision-making, because the rational basis test is nothing more than a Magic Eight Ball that randomly generates different answers to key constitutional questions depending on who happens to be shaking it and with what level of vigor.

Mendacious as the rational basis test is in name, however, that is nothing compared to the intellectual dishonesty it engenders in actual litigation, where it produces a variety of bizarre phenomena that would never be tolerated in any other setting. These include the spectacle of judges simultaneously recognizing and refusing to protect fundamental constitutional rights; permitting government lawyers and witnesses to misrepresentor at least disregardmaterial facts; preferring conjecture over evidence; saddling plaintiffs with a burden of proof that is technically impossible to discharge; abandoning judicial neutrality; and blatant but unacknowledgedmisapplication of the test in select cases to achieve preferred outcomes.

Admittedly, Neily is a sworn enemy of the post-New Deal Supreme Court, and you might very well disagree with him on such subjects as school vouchers, property rights, etc. But it’s nice to see a legal scholar get worked up about the sort of reckless nonsense (DOMA encourages procreation) that was okayed in the Andersen decision.


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The Court shouldn't have even reached the Rational Basis test. Madsen's analysis of whether sexual orientation was a "suspect" class was absolutely horrid. I still wonder how she twisted her logic by stating that because homosexuals got protection via an anti-discrimination statute, they have political power. Wha? In that case, ALL minorities protected by anti-discrimination statutes may now be discriminated against (provided there's a rational basis). You know, maybe no more interracial marriage, since light skin sure is better looking than dark skin.

Man, you guys had killer interviews in the Stranger with the justices on this - shows how much of a lie their "winning argument" was.

Him--I completely agree. I also think the fact that the Court didn't reach that conclusion is partly the fault of the plaintiffs (hello, give the Court some scientific evidence on immutability to work with), partly the fault of an equally conservative litigation strategy in previous Supreme Court decisions (Lawrence and Romer, specifically). Stupid, stupid precedent.

Neily's critique is dead-on, but you totally miss the point if you think you can de-couple it from the consequences of his libertarianism that you don't like.

The really good, principled argument against current marriage law is that the government has no business regulating the private relationships of informed, consenting adults. People make this libertarian argument in passing conversation, but they don't make it in court, because, even though it should be, it actually isn't a codified constitutional principal.

The reason it isn't a codified constitutional principal is that there are hoardes of non-libertarians on the left and the right who actually want the government messing in people's private affairs. They prefer a "magic eight ball" standard that places no objective limits on government power because, as long as they can capture control of the right court or legislature, it allows them to regulate people's private lives in the ways that they want.

If you oppose a strong limit on governemnt power because it might prevent you from regulating what people do on their property, or what wage they work for, or with whom they are allowed to trade, then you are a part of the problem.

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