Politics Hate the Rational Basis Test?
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.
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.