Rational Basis Test with "Bite"
The issue: Should the "rational basis" test consider have bite--at least when certain types of individual interests are at stake?
The traditional rational basis test, as applied in cases such as Williamson v Lee Optical, is extremely deferential--some would call it a total abdication of judicial responsibility.  Under this traditional test, a state law must be upheld if it (or the classification it contains) is rationally related to any legitimate interest of the state.  Moreover, the legitimate interest of the state need not be one that actually motivated legislators to enact the legislation.  It is enough if the interest is now advanced and that it is "conceivable."  If attorneys for the state lack the creativity to come up with a conceivable interest, some justices are willing to help out and supply one themselves.

In some cases, however, when the disadvantaged group is a sympathetic one and the individual interest affected is especially strong, the rational basis test is applied differently.  The cases linked to this page are illustrative.  Plyler v Doe (1982) involved a challenge to a Texas law that denied to the children of illegal aliens a public education.  Cleburne v Cleburne Living Center (1985) concerned a challenge to a local zoning decision that denied a permit to construct a home for the mentally retarded.  In both Plyler and Cleburne, the Court compared the weight of the state's asserted interests--which it found to be very weak--against the substantial harm to the plaintiffs, and determined the laws in question to violate the equal protection clause.

Junior high school in Dickinson, North Dakota

The Court had an opportunity to apply this somewhat heightened scrutiny in a 1988 case, Kadrmas v Dickinson Public Schools, but declined to do so by a 5 to 4 vote.  In Kadrmas, the Court concluded that a North Dakota law that charged indigent rural parents a fee to transport their children to public schools did not violate the equal protection clause.  The Court applied the traditional rational basis test.  The four dissenters, noting the important right at stake and the potentially significant barrier the fee posed to indigent parents seeking an education for their children, would have followed Plyler and applied a higher level of scrutiny.

Romer v Evans (1996) involved a challenge to a Colorado constitutional amendment that deprived gay rights activists to meaningfully lobby for legislation that would extend the protections of civil rights laws to homosexuals.  As in Plyler and Cleburne, the Court struck down the challenged law using what it called a rational basis test.  In an angry dissent, Justice Scalia said the answer to the question of whether a rational basis supported the law was "obviously yes."

Although vague about exactly what standard of review it was employing, the Court in 2013 in United States v Windsor struck down a key provision of the federal Defense of Marriage Act that denied federal recognition to same-sex marriages even in states where such marriages were lawful.  Writing for a 5 to 4 majority, Justice Kennedy said that Fifth Amendment's Due Process Clause "containing within it the prohibition against denying any person the equal protection of the laws...withdraws from Government the power to degrade or demean in the way this law does." The Court held the law invalid "for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."

The actual application of the rational test in Plyler, Cleburne, Romer, and Windsor differed from that traditionally used in cases where no suspect classification or fundamental right was involved in at least one important respect: the Court in all three cases weighed the state's asserted interests and compared them to the strong individual interests at stake.  Some commentators have referred to the test used in cases such as these as "rational basis with bite."

Plyler v Doe (1982)
Cleburne v. Cleburne Living Center (1985)
Kadrmas v Dickinson Public Schools (1988)

Romer v Evans (1996)
United States v Windsor (2013)

NOW Vice President Rosemary Demsey addresses a "No on No. 2" rally in Denver.  Colorado Amendment No. 2 ultimately passed, but was declared unconstitutional in Romer v Evans.


1. Why isn't Texas's interest in discouraging illegal immigration sufficient to support its decision to deny taxpayer-funded schooling to the children of illegal aliens?  Why isn't its interest in saving the expense of educating 20,000 children of illegal alines sufficient?
2. Is there a difference between the political costs of supporting or opposing the Texas law and the real costs of the law?
3. Is the fact that the disadvantaged group in Texas was innocent children critical to the outcome?
4.  Do any of the interests advanced by Cleburne seem rationally related to its decision to deny a permit for the home for the mentally retarded?  Should the Court view alleviating an irrational fear of neighbors (who might not understand the difference between mental retardation and mental illness) as a legitimate interest?
5.  What do you see as the advantages and disavantages of the "sliding scale" approach to equal protection cases suggested by Justice Marshall in his opinion?
6.  What do you think about the suggestion of Justice Stevens' that we collapse equal protection analysis to one question: "Is the classification based on a neutral and legitimate evaluation of circumstances by legislators"? 
7.  Why did the parents challenging Dickinson't refusal to supply free bus transportation to the children of indigent parents lose their case?  Was their interest weaker than that of the parents in Plyler, in that there was no absolute denial of an education?  If the fee charged for bus transportation was substantially higher than it was, might the parents' challenge have been successful?
8.  What might be examples of other laws that could be successfully challenged by convincing a court to give bite to its usual rational basis test?
9.  Why might Justice Kennedy have chosen to avoid using the phrase "rational basis test" in Windsor even while concluding that the federal government lacked any "legitimate purpose" for not recognizing same-sex marriages in states where they were lawful?

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