The Two Versions of Rational-basis Review and Same-sex Relationships

• Publication year: 2021

THE TWO VERSIONS OF RATIONAL-BASIS REVIEW AND SAME-SEX RELATIONSHIPS

Robert C. Farrell(fn*)

Abstract: Although it purports to be a single standard, equal protection's rational-basis review has two faces that use different methods and produce conflicting results. The United States Supreme Court employs both versions but does not acknowledge that a conflict exists between them. Without an explicit acknowledgment of the contradictory nature of the two rationality reviews, it follows that the Court has made no effort to explain in what context one version should be used and in what context the other is appropriate. As a result, it is very difficult to predict with accuracy the outcome of arguments based on equal protection's rational-basis review in the lower courts because no matter which side a court picks, it can find U.S. Supreme Court precedents to support the result. In recent years, this problem of unpredictability has been particularly acute in cases challenging laws that disadvantage persons involved in same-sex relationships. Because rational-basis review is ordinarily deferential to legislative judgment, these challenges usually fail. There is, however, a core of successful rational-basis claims that involve a more demanding scrutiny and seem to contradict the results in the more typical cases. This creates unpredictability. This Article examines this duality in three factual settings: (1) state laws that define marriage as limited to a man and a woman, (2) the United States military's policy of excluding gays and lesbians from military service, and (3) the federal Defense of Marriage Act, which limits federal recognition of marriage to opposite-sex couples.

INTRODUCTION. ...............................................................................282

I. EQUAL PROTECTION'S RATIONAL-BASIS REVIEW..........283

A. Creating the Rational-Basis Standard..................................283

B. Identifying the Classification...............................................285

C. Identifying the Purpose of the Law......................................286

D. Determining the Required Correlation Between Classification and Purpose...................................................290

II. THE LEADING U.S. SUPREME COURT CASES ON BOTH SIDES OF THE RATIONAL-BASIS DIVIDE.............................290

A. The Deferential Version....................................................... 290

B. The More Demanding Version of Rationality Review ........ 298

C. How Does the Court Decide Which Version of Rationality Review to Use?..................................................305

III. SAME-SEX RELATIONSHIPS AND THE TWO VERSIONS OF RATIONALITY REVIEW. .....................................................306

A. State Laws that Define Marriage as Being Limited to a Man and a Woman. ..............................................................306

B. Gays in the Military.............................................................318

C. The Defense of Marriage Act...............................................324

CONCLUSION. ...................................................................................328

INTRODUCTION

Equal protection's rational-basis review is like a tale of two cities, or perhaps like the story of Dr. Jekyll and Mr. Hyde, or even like the two-faced Roman god Janus, who simultaneously looked out in opposite directions. Although rationality review purports to be one standard, it has two faces that use different methods and produce conflicting results. The United States Supreme Court employs both versions but does not acknowledge that a conflict exists between them. Without an explicit acknowledgment of the contradictory nature of the two rationality reviews, it follows that the Court has made no effort to explain in what context one version should be used and in what context the other is appropriate. As a result, it is very difficult to predict the outcome of arguments based on equal protection's rational-basis review in the lower federal courts because, regardless of which basis is chosen, a lower court can find U.S. Supreme Court precedents to support the result.

In recent years, this problem of unpredictability has been particularly acute in cases challenging laws that disadvantage persons engaged in same-sex relationships. Because rational-basis review is ordinarily deferential to legislative judgment, these challenges usually fail. There is, however, a core of successful rational-basis claims that involve a more demanding scrutiny and seem to contradict the results in more typical cases. This creates unpredictability. This Article examines this issue in three factual settings: (1) state laws that define marriage as limited to a man and a woman, (2) the U.S. military's policy of excluding gays and lesbians from military service,(fn1) and (3) the federal Defense of Marriage Act (DOMA), which limits federal recognition of marriage to opposite-sex couples.

Challenges to laws that disadvantage gays and lesbians are generally based on one of three different legal arguments: (1) that they infringe on a fundamental liberty identified in Lawrence v. Texas (fn2) and are thus subject to heightened judicial review; (2) that they discriminate against a suspect or quasi-suspect class and are thus, once again, subject to heightened judicial review; or (3) that they do not even survive rational-basis review under the Equal Protection Clause. This Article examines the rational-basis argument and explores the two-fold and contradictory nature of rational-basis review.

Part I of this Article identifies the basic elements of equal protection's rationality standard, including the differing techniques that lead to the two different versions of the doctrine. Part II examines the leading U.S. Supreme Court cases on each side of the rationality divide. Part III considers these two versions of rationality review in a particular factual setting-equal protection challenges to laws that disadvantage gays and lesbians.

I. EQUAL PROTECTION'S RATIONAL-BASIS REVIEW

A. Creating the Rational-Basis Standard

The command of equality is essentially comparative. It requires a comparison of one entity with another entity.(fn3) Since Aristotle, the idea of equality has been understood to involve the comparative command that those similarly situated should be treated similarly.(fn4) Most equal-protection cases involve a comparison of two different classes.(fn5) To classify is to identify a trait that makes a person a member of a class (all those over age fifty, for example) and then to ascribe a certain treatment (such as forced retirement) for those who, having the trait, are members of the class.(fn6) The typical equality challenge to this kind of classification compares one class of persons (those who have the trait) with a second class of persons (those without the trait) and argues that, because the two classes are similarly situated, the members of both classes should be treated similarly.(fn7)

The difficulty in applying this similarly-situated standard is the critical determination of who is similar to whom and therefore entitled to similar treatment. This question of similarity is unanswerable in the abstract. On the one hand, all human beings are similar to all other human beings in having, for example, a human genome, and are therefore arguably entitled to similar treatment. At the same time, all human beings are unique-entities with their own genes and life experience-and thus different from everyone else and entitled or subject to different treatment. The difficulty in solving this conundrum is substantial. Peter Westen has called it an impossible task-one that makes the idea of equality an empty thing.(fn8)

Courts applying the Equal Protection Clause have addressed the problem of identifying who is similar to whom by referring to an external criterion-the purpose for which the classification was made. Thus, for example, all persons over the age of fifty share a trait that makes them members of a class. Are they similarly situated to individuals in a class made up of people younger than fifty? It depends on whether this age classification is relevant to its purpose. If the purpose of the classification is to identify individuals who still have sufficient vigor to perform a physically demanding job like police work, then the two classes might be considered differently situated, as fitness declines with age.(fn9) If, however, the purpose of the classification is to determine who is eligible to vote, then the two classes appear to be similarly situated, because physical vigor bears little relation to voting ability. It is on this understanding-that there must be some correlation between classification and purpose-that the U.S. Supreme Court has developed equal protection's rational-basis standard.(fn10)

The standard is easy to state-a classification must be rationally related to a legitimate governmental interest or purpose(fn11)- but has been difficult to apply consistently. In order to apply the standard, a court must (1) identify the classification, (2) identify the purpose, and (3) determine whether or not the classification is adequately correlated with that purpose. When the Court considers whether or not a classification is rationally related to a permissible interest, it follows either one of two very different lines of...