The Rational-Basis Test Violates Due Process
2013 was a big year for civil rights. The Supreme Court reviewed affirmative action in higher education. It required federal, but not state, recognition of same-sex marriage. These are equal-protection cases, which ask how, under the Constitution, the government may treat its citizens. So it is a good time to reexamine tiered scrutiny, the familiar lens through which courts view this question.
In theory, courts look at a law in one of three ways: with strict scrutiny, with intermediate scrutiny, or with rational-basis scrutiny. For affirmative action, courts are strict. Laws that racially discriminate must be “narrowly tailored to achieve a compelling state interest.” In contrast, laws that discriminate by gender, for example, get intermediate scrutiny. They must be “substantially related” to an “important” state interest. Stateprohibitions on same-sex marriage might be judged under this standard. Or they may, along with “routine matters of commercial, tax and like regulation,” be judged under the rational-basis test.6Under this lowest standard, laws need only be “rationally related to a legitimate government interest.”
