The oral arguments in the DOMA case really hit home how messed up the term”Rational Basis” is.

Under Lee Optical rational basis, the government doesn’t even need to provide a rationale for a law’s constitutionality. But under all other types of rational basis, the Court behaves like a Court, and actually looks at what the government did when enacting the law.

Which kind of rational basis review is Justice Kagan doing here?

JUSTICE KAGAN: Well, is what happened in 9 1996 — and I’m going to quote from the House Report 10 here — is that “Congress decided to reflect an honor of 11 collective moral judgment and to express moral 12 disapproval of homosexuality.” 13 Is that what happened in 1996?

MR. CLEMENT: Does the House Report say 15 that? Of course, the House Report says that. And if 16 that’s enough to invalidate the statute, then you should 17 invalidate the statute. But that has never been your 18 approach, especially under rational basis or even 19 rational basis-plus, if that is what you are suggesting. 20 This Court, even when it’s to find more 21 heightened scrutiny, the O’Brien case we cite, it 22 suggests, Look, we are not going to strike down a 23 statute just because a couple of legislators may have 24 had an improper motive. We’re going to look, and under 25 rational basis, we look: Is there any rational basis for the statute? 2 And so, sure, the House Report says some 3 things that we are not — we’ve never invoked in trying 4 to defend the statute. 5 But the House Report says other things, like 6 Congress was trying to promote democratic 7 self-governance. And in a situation where an unelected 8 State judiciary in Hawaii is on the verge of deciding 9 this highly contentious, highly divisive issue for 10 everybody, for the States — for the other States and 11 for the Federal Government by borrowing principle, it 12 makes sense for Congress -­

Likewise, Justice Breyer is going out of his way not to imagine what a rational basis could be for his law (it really isn’t that hard):

MR. CLEMENT: Again, I think the right way 9 to analyze it would be, you know, is — is there any 10 distinction drawn that implicates what level of scrutiny 11 is implicated. If the level of scrutiny is a rational 12 basis, then my answer to you would be, yes, they can do 13 that. I mean, we’d have to talk about what the rational 14 basis would be -­ 15 JUSTICE BREYER: No, there isn’t any. I’m 16 trying to think of examples, though I just can’t imagine 17 what it is. 18 MR. CLEMENT: Well, I — I think the uniform 19 treatment of individuals across State lines -­ 20 JUSTICE BREYER: All right. So you’re 21 saying uniform treatment’s good enough no matter how odd 22 it is, no matter how irrational. There is nothing but 23 uniformity. We could take — no matter. Do you see 24 what I’m — where I’m going? going, Justice Breyer. JUSTICE BREYER: All right. (Laughter.)

So long as Paul Clement has the burden of showing why the law is not irrational, DOMA can’t survive. This is the fallacy of rational basis review. Whoever bears the burden loses.

Of course, Clement thinks three levels of scrutiny are enough (I chuckled at the Buck v. Bell reference in response to a Breyerian question):

JUSTICE BREYER: That means courts — the 25 courts, they do dictate in respect to time. They 1 dictate in respect to age. They dictate in respect to 2 all kinds of things. And what I’m looking for is: 3 What, in your opinion, is special about this homosexual 4 marriage that would justify this, other than this kind 5 of pure uniformity, if there is such a thing? MR. CLEMENT: Well, let me — let me just 7 get on record that — to take issue with one of the 8 premises of this, which is we are at somehow rational 9 basis-plus land, because I would suggest strongly that 10 three levels of scrutiny are enough.

Justice Ginsburg hits right back at rational basis:

Clement: I would say also the Federal Government has conceded in this litigation that there is a rational basis for this statute, something else to keep in mind. I would also say that this provision is not so unique. The very next provision in the Dictionary Act -­

JUSTICE GINSBURG: Rational basis, Mr. Clement — is a problem in your briefing. You seem to say and you repeat it today that there is three tiers and if you get into rational 4 anything goes. But the history of this Court is, in the 5 very first gender discrimination case, Reed v. Reed, the 6 Court did something it had never done in the history of 7 the country under rational basis. There was no 8 intermediate tier then. It was rational basis.

MR. CLEMENT: Well -­ 10

JUSTICE GINSBURG: And yet the Court said 11 this is rank discrimination and it failed.

Between yesterday’s argument and today, I think the time is ripe for finally slaying this rational basis and rational basis-plus dichotomy. Stop dragging down rational-basis plus, with Lee Optical rational basis (what is really a political question). I’m gonna have to write something about this now.

Update: Damon Root highlights another exchange from the arguments about Lee Optical.

GENERAL VERRILLI: The question in the case, Justice Alito is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed. And it — and it does not. The only way in which — that BLAG’s arguments for the constitutionality of this statute have any prospect of being upheld is if the Court adopts the minimal rationality standard of Lee Optical.

GENERAL VERRILLI: Well, the question before the Court is whether the exclusion that DOMA imposes violates equal protection, and it does violate equal protection because you can’t treat this as though it were just a distinction between optometrists and ophthalmologists, as the Lee Optical case did. This is a different kind of a situation because the discrimination here is being visited on a group that has historically been subject to terrible discrimination on the basis of personal -­

Damon adds:

It was an atypical performance by the Obama administration, which is normally in the habit of reading federal power in the broadest of terms. For instance, in the main brief the federal government submitted in last year’s health care case, it asserted, “Congress had far more than a rational basis for concluding that” the absence of health insurance “has a deleterious effect on interstate commerce.”

But unlike the health care case, where the White House wanted to save the law and therefore sought maximum deference from the justices, the federal government in this case wants to see DOMA struck down and therefore favors more aggressive judicial tactics—hence the lobbying effort against relying on Lee Optical as a relevant precedent.

This is not what I would call an internally consistent legal philosophy, but that impediment has not stopped the White House before.