Ordinary and enhanced rational basis review in the Massachusetts supreme judicial court: a preliminary investigation.

• Author: Friedman, Lawrence M.

1. INTRODUCTION

   In its 2003 decision in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court held that the denial of marriage licenses to same-sex couples violates the state constitutional commitment to equality. (1) The ruling engendered no end of criticism, much of which focused on the court's conclusion that the civil marriage prohibition could not survive rational basis review, a standard of judicial scrutiny that encourages judicial deference toward the policy choices of the political branches of government. (2) Critics charged that the court was not applying rational basis review at all, but rather an undefined standard a good deal stricter. (3) Justice Sosman, writing in dissent, stated that the Goodridge majority had "tortured the rational basis test beyond recognition," and she expressed the hope that in the future the court would "return to the rational basis test as it has always been understood and applied." (4)

   A review of equal protection cases from the past century suggests that Justice Sosman's hope is premised upon a mistaken impression of the nature of rational basis scrutiny under the Massachusetts Constitution. In fact, the Massachusetts Supreme Judicial Court has long applied at least two kinds of rational basis scrutiny to government action: ordinary, deferential rational basis scrutiny in the mine run of cases, and an enhanced rational basis scrutiny when the government action in question implicates or restricts certain important personal interests. This Article examines the cases in which the Massachusetts Supreme Judicial Court has applied enhanced rational basis scrutiny, as well as those cases in which the court has limited the circumstances in which such scrutiny is available. The goal is descriptive, to trace the origins of the Goodridge court's analytical framework in an effort to determine whether the decision should be regarded as an eccentric application of rational basis review or, as seems to be the case, merely the latest in a long line of cases in which the court has examined regulation more critically within the context of what we today call rational basis scrutiny. (5)

2. RATIONAL BASIS SCRUTINY: ORDINARY VERSUS ENHANCED

   Rational basis scrutiny is ordinarily understood as exceedingly deferential to the political branches of government. Though the provisions of the Massachusetts Declaration of Rights express the commitment to equality differently than the Equal Protection Clause of the Fourteenth Amendment, (6) the Massachusetts courts have traditionally applied the federal equal protection framework when addressing claims raised under the state constitution. (7) Pursuant to that framework, government action that affects a fundamental interest or creates a suspect classification will receive the strictest scrutiny from the courts. Fundamental interests recognized under the Massachusetts Constitution include the right to decide for one's self whether to have a child, (8) how to raise children, (9) and whether to accept medical treatment. (10) Suspect classifications under the Massachusetts Constitution include those based upon race, alienage, nationality, religion, (11) and sex. (12)

   In contrast, government action that does not affect a fundamental interest or a suspect classification will be analyzed under rational basis scrutiny. A legislative classification will survive rational basis review if it promotes a legitimate state interest through means that are not wholly irrational or arbitrary. (13) Applying this standard--the ordinary form of rational basis review--the court will uphold a regulation that "'rationally furthers some legitimate, articulated state purpose,'" (14) and a plaintiff will prevail only upon a demonstration that the regulation at issue is arbitrary, irrational, or capricious. (15)

   In certain cases, however, the Massachusetts courts have applied enhanced rational basis scrutiny when entertaining an equal protection challenge to a regulation, notwithstanding that the law does not implicate either a fundamental interest or a suspect classification. (16) Enhanced rational basis scrutiny is concerned with the question of whether there is an actual, as opposed to conceivable, rational basis for government regulation. Specifically, a court applying this standard will uphold the classification if (1) the government has a legitimate regulatory interest at stake, and (2) there is a real and demonstrable connection between the means chosen to advance that interest and the ends of the legislation, as opposed to a connection that is merely conceivable. (17) Unlike ordinary rational basis review, a court applying enhanced rational basis review typically will require some evidentiary showing from the Commonwealth that the connection between ends and means is reasonable, though in some cases, the court also questioned the evidentiary basis for the legitimate end that the legislation purported to address. (18) Enhanced rational basis review is stricter than ordinary rational basis review, but it is not strict scrutiny: Under enhanced rational basis review, the Commonwealth need not demonstrate a compelling interest; rather, it need only demonstrate that a factually supportable basis exists to conclude that a particular means--that is, a particular discrimination--will promote legitimate ends.

   What are the conditions that will trigger enhanced rational basis scrutiny? From the cases, it appears the government action must implicate or restrict an interest that the courts deem important but that does not rise to the level of a fundamental personal interest. In Howes Brothers Co. v. Massachusetts Unemployment Compensation Commission, (19) for example, the plaintiffs, all employers, challenged the constitutionality under the Federal Constitution of a state unemployment compensation law that exempted certain industries and employers from its requirements. (20) The court presumed the law a valid exercise of the police power (21) and was unconcerned with the wisdom of the legislature's policy decision or the accuracy of its fact-finding. (22) The challenged law concerned economic policy--that is, the law could be characterized as a regulation of general application, and not one that targeted for special treatment individuals engaged in a particular kind of business, vocation, or profession. The regulation at issue did not directly undermine a personal interest, such as the interest in pursuing a particular business, vocation, or profession, or an interest of equivalent weight. (23) The court accordingly applied ordinary rational basis review and did not require an evidentiary demonstration of the legitimacy of the legislature's goals or the fit between ends and means. (24)

   This is in contrast to government action that implicates a personal interest of greater weight than that implicated by the effect of general economic regulation. Consider Goodridge v. Department of Public Health. (25) In that case, the plaintiffs challenged the constitutionality of the civil marriage licensing statute, pursuant to which they had been denied marriage licenses. (26) They argued the law violated equal protection and due process under the Massachusetts Constitution. (27)

   The court concluded that the plaintiffs' claim involved a significant personal interest--namely, the freedom to marry a person of one's own choosing, which the court characterized as "among the most basic of every individual's liberty and due process rights." (28) That interest is different than the interest in avoiding the natural discriminatory effects of a generalized economic regulation, the injury claimed by the plaintiff in Howes. (29) The Goodridge court did not elaborate on its conclusion that the interest at stake in respect to civil marriage was important, but not fundamental, (30) notwithstanding the support in federal law for the view that it qualifies as a fundamental right. (31)

   Because the regulation at issue--the civil marriage exclusion--implicated a significant, though not a fundamental, personal interest, the court subjected the law to enhanced rational basis review. The Commonwealth argued that limiting civil marriage to opposite-sex couples: "(1) provid[ed] a 'favorable setting for procreation'; (2) ensur[ed] the optimal setting for child rearing ... and (3) preserv[ed] scarce State and private financial resources." (32) The court examined each of these rationales separately, focusing not on the legitimacy of the Commonwealth's ends but rather on the rationality of the means chosen to further those ends--namely, excluding same-sex couples from civil marriage. (33)

   The court concluded that the exclusion did not promote a favorable setting for procreation: the law did not prohibit opposite-sex couples who were infertile or had no intention of having children, from marrying. (34) Indeed, the court noted that a couple's ability and desire to bear children had never been a condition for opposite-sex marriage. (35) The court also concluded that limiting civil marriage to opposite-sex couples did not further the Commonwealth's legitimate interest in protecting the welfare of children. (36) In fact, the Commonwealth conceded that many "same sex couples may be 'excellent' parents." (37) In addition, the record revealed no evidence to suggest that prohibiting same-sex marriage would result in more people "choosing to enter into opposite-sex marriages in order to have and raise children." (38) Finally, the court concluded that "[a]n absolute statutory ban on same-sex marriage [bore] no rational relationship to the goal of economy." (39) Financial assistance for opposite-sex married couples did not hang upon a showing of "financial dependence" on a spouse; rather, the Commonwealth made assistance "available to married couples regardless of whether they mingle their finances or actually depend on each other for support." (40) The Commonwealth could not prohibit same-sex...