Tackling the most important topics of law school, Part 6b: Rational basis, “with teeth,” and intermediate scrutiny

September 5, 2013

Law School 101a(Editor’s note: Over the next ten weeks, we’ll be covering some of the most prominent legal concepts taught in law school to help students faced with these topics, whether for the first time or as part of a review, better comprehend them.)

In Part A of this topic, we covered strict scrutiny.  Although we’ll be covering the other three levels of judicial review in this second part, much of what was covered in the first post serves as a foundation for the review levels discussed in this post.

Rational Basis

Where strict scrutiny is the most demanding level of review, rational basis is the most lax.

To pass rational basis, a government action must only be “rationally related” to serving a legitimate state interest.

Instead of strict scrutiny’s “compelling” government interest, rational basis only requires the interest to be “legitimate;” instead of strict scrutiny’s “narrowly tailored” and “least restrictive means” requirements, we have rational basis’ “rationally related” benchmark.

And rational basis’ requirements truly are as undemanding as they seem.  A “legitimate” interest is broadly defined, allowing the government wide latitude in its motivations behind a law.  Moreover, the interest doesn’t even have to be asserted by the government; the court can conceive of a “legitimate” interest on its own.

The “rationally related” portion of this test simply means that there must be some logical connection between what the government’s interest is (real or as perceived by the court), and the methods that the government is using to achieve that interest.

As one could imagine, it’s quite difficult for a law to fail the rational basis test – but it does happen (as we’ll get into in more detail later).

Finally, the rational basis test applies when none of the other levels of review do.  It is the default standard, and courts will only deviate from it when the situation warrants.

As discussed in the previous post, strict scrutiny is required when a fundamental right is infringed or a suspect class is discriminated against.  But another standard of review apart from rational basis is required when a quasi-suspect class faces discrimination by the government.

Intermediate Scrutiny

And that standard is known as “intermediate scrutiny.” Quasi-suspect classes meet some or most, but not all of the requirements necessary to achieve full “suspect classification” status.

As discussed in our Ruth Bader Ginsburg profile post, sex is treated as a quasi-suspect classification for constitutional law purposes.  Although sex is the most common quasi-suspect classification, the Supreme Court has also recognized that legitimacy is also a quasi-suspect classification.

How does the actual test differ from strict scrutiny?

Under the intermediate scrutiny test, the government action must

  1. Serve an important governmental interest; and
  2. Be substantially related to serving that interest.

It’s difficult to pin down what the exact difference between intermediate’s “important” interest and strict scrutiny’s “compelling” interest aside from the fact that the “important” interest is less “compelling.”

The same general principle is true with the difference between “substantially,” rather than “rationally” related: not much is crystal clear as to when something is “substantially” related to a governmental interest; “substantially” is just stricter than “rationally.”

Finally, intermediate scrutiny has been inconsistently applied by courts to one final “quasi-suspect” classification: sexual orientation.

The case that perhaps best exemplifies this inconsistency is U.S. v. Windsor, on which the Supreme Court ruled this past summer.

True, intermediate scrutiny wasn’t applied by the Supreme Court in its ruling, but it affirmed the Second Circuit’s ruling below, which did apply intermediate scrutiny to laws that discriminate on the basis of sexual orientation.

The Supreme Court’s ruling, conversely, seemingly applied the final standard, which it has done with previous cases involving state discrimination against individuals on the basis of sexual orientation.

“Heightened” Scrutiny or Rational Basis “With Teeth”

In Windsor, the Supreme Court found that the Defense of Marriage Act’s Section 3, which limited the federal definition of “marriage” to opposite-sex spouses, was created out of “Congress’s ‘moral disapproval of homosexuality.’ “

Under this heightened scrutiny, that is impermissible.

This judicial review level’s other name – rational basis with teeth – is an apt description.  It is, essentially, a version of rational basis that is used to strike down laws whose sole purpose is to discriminate against a certain group that isn’t necessarily considered a suspect or quasi-suspect class.

First appearing in the Supreme Court’s 1996 Romer v. Evans ruling, many technically still consider this level to be part of rational basis, with the simple caveat that animus towards a particular group is categorically not a “legitimate” state interest.

Regardless, in cases when this standard appears, the ruling court typically does not do an exhaustive search for any possible “legitimate” state interest that could help the law in passing this test.

However, for the purposes of any law school or bar exam questions, even in circumstances in which a law appears to be motivated solely by animus towards a particular group, it’s important to consider any alternate possible state interests that could be “legitimate.”

So there you have it: the levels of judicial review.

If you have any specific questions on the topic, feel free to post them in the comments below!