First, every warning flag 13 that warrants exacting scrutiny is present in this case. 14 And Petitioners’ defense of Proposition 8 requires the 15 Court to ignore those warning flags and instead apply 16 highly deferential Lee Optical rational basis review as 17 though Proposition 8 were on a par with the law of 18 treating opticians less favorably than optometrists, 19 when it really is the polar opposite of such a law.
I have been chatting with my friend Clark Neily, and considering coming up with a new phrase for Lee Optical Rational Basis Review. It is unfortunate that that the Cleburne/Romer rational review is slopped together with the Lee Optical Rational Basis Review. I don’t like the Rational Basis + Bite Formulation, because that suggests that Cleburne and Romer are something extra. Those should be the baseline for rational basis review. In my mind, Lee Optical rational basis review is a political question/abstention doctrine, where the courts just pretend to act like Judges. I will probably write something about this over the summer, called “The Supreme Courts Fourth Tier of Scrutiny” or something like that.
Update: Lee Optical is mentioned nowhere in the government’s brief. This line was impromptu. Odd, as Verrilli is usually so careful. This is not a point I think the government would ever want to make.
Update 2: I was wrong, Lee Optical is cited in the SG Brief.