Rationality review: A disguised double-standard

[Tepker, Rick]

The discussion about rationality review leaves me with several impressions.
First, there are, in fact, two different standards.  One is the 'minimum
rationality' standard of Williamson v. Lee Optical, in which the court will
use conjecture and hypothesis regarding both the definition of objectives
and the judgment that means further ends.  Under this standard, almost
anything goes, save only for a measure in which it is almost literally
impossible to figure out a legitimate object.  The other test isn't formally
acknowledged by the Court, but almost every justice has voted for something
like it in pursuit of their own particular vision (e.g., preservation of
state authority, overturning prejudicial  measures against gays or the
mentally retarded, more funding for schools or welfare).   Regarding the
second test -- whether labeled 'rational basis with bite' or
'reasonableness', it is not so much a mystery of 'how it works' when it is
invoked.  Gunther's means-focused review seems to me to be the model.  If I
may quote from an earlier attempt to sort this out in print:

        "At a minimum, when a litigant proves facts that bring into question
the legitimacy and impartiality of a classification, a government should be
required to articulate its objectives. This requirement would help to ensure
that the legislative process produces evidence of conscious legislative
choice, so that judges will be sure to have something real as the object of
their deference. Moreover, in such cases, a government should be required to
present evidence of a law's usefulness in promoting the articulated
objectives.

        "A careful scrutiny need not require government to prove its belief
in the effectiveness of a law past the point of all controversy or
reasonable doubt. Rather, the Court could require government to demonstrate
that substantial evidence of a policy's effectiveness existed and that
policymakers actually relied on such evidence at the time they made their
decision. A legislative classification of doubtful legitimacy should not be
"rationalized" after the fact. Speculation and the imagination of attorneys
should not be enough to uphold a statute. A more rigorous scrutiny of the
relation between selected legislative methods and defined legislative ends
can prompt -- or at least create incentives for -- a more thoughtful and
careful legislative process.

        "Perhaps most relevant to Justice Marshall's view of heightened
scrutiny or close scrutiny, a toughened test would make it easier to
separate genuinely reasonable explanations from thinly disguised prejudice.
Careful scrutiny would allow federal courts to "weigh" or "balance" the
government's claim of utility against the harm to a disadvantaged class.
Though this process can often result in little more than second-guesses of
original legislative judgments, closer judicial scrutiny can focus on the
problem of government impartiality and the telltale signs of prejudice. A
more rigorous scrutiny of state law can help block the stereotyping and
thoughtless reflexes embodied in statutes that are truly the just concerns
of a court enforcing the equal protection principle."

The real problem is to decide when it ought to be invoked.  It is not
invoked 'across the board.'  Instead it seems to be a disguised method of
judicial intervention in pursuit of certain values.  The problems are
compounded because courts say they are using one test - rationality - when
they are using rationality plus.  The absence of standards for invoking the
marginally greater scrutiny "gives the Court a measure of discretion to
resolve cases whenever it is willing to resort to thin disguises and
confusing formulations." As Justice Marshall put it in his concurring
opinion in Cleburne:

"Moreover, by failing to articulate the factors that justify today's 'second
order' rational-basis review, the Court provides no principled foundation
for determining when more searching inquiry is to be invoked. Lower courts
are thus left in the dark on this important question, and this Court remains
unaccountable for its decisions employing, or refusing to employ,
particularly searching scrutiny. Candor requires me to acknowledge the
particular factors that justify invalidating Cleburne's zoning ordinance
under the careful scrutiny it today receives."
______________________________
Harry F. Tepker
Calvert Chair of Law and Liberty
   & Professor of Law
University of Oklahoma Law Center
Norman, Oklahoma 73019
rtepker at ou.edu
405.325.4832
Fax: 405.325.0389
______________________________

SEPARATING PREJUDICE FROM RATIONALITY IN EQUAL PROTECTION CASES, 47 Okla. L.
Rev. 93 (1994)