The Two Versions of Rational-Basis Review and Same-Sex Relationships

Abstract

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 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 twofaced 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,1 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. Texas2 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 rationalbasis 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. …