The Rational Basis Test: Gone with the Windsor?

June 26th, 2013

I have long argued that there are many flavors of the rational basis test, and not just the conventional rational basis test, and the so-called rational basis plus test applied in Cleburne, Romer, and Moreno. More broadly, the entire notion of tiers of scrutiny is only one of nomenclature. At heart, what constitutional review considers is who bears the burdens. For what the Court has called fundamental rights, or strict scrutiny, the government bears a very strong burden. In  Fisher, and in particular in Justice Thomas’s concurring opinion, we saw how seriously the Court takes that burden. The Court will not simply defer to the pleadings of the government, but instead will force the government to satisfy the court that “no workable race-neutral alternatives would produce the educational benefits of diversity.”

On the other end of the spectrum, with what we usually call rational basis review, the individual plaintiff bears a burden to show that the law is unconstitutional. This burden glides along a very steep sliding scale, where at times under Lee Optical-style rational basis review, the plaintiff has an impossible (and indeed fictitious) burden to disprove any conceivable reason why the law is constitutional (including reasons the Court can make up after the fact), to what we previously called rational-basis plus (where the Court performs a more searching inquiry). This is the traditional story that we all learned in law school. I discuss these posts at length here.

However, over the last twenty years of the Court’s jurisprudence–in cases like Heller, Kelo, Romer, Lawrence, and others–reflects what I think is a abandonment, or at least, walking away from trying to define or adhere to tiers of scrutiny, and specifically explaining what rational basis review is. After reading Windsor today, I think the Court, led by Justice Kennedy, has ventured further down that path. Rather than thinking in terms of government interests or tailoring, these opinions show that the main focus is assigning different levels of burdens to the plaintiff, or the state. Within the different zones of rational basis scrutiny, we see  attempts to shift and weight the burdens of persuasion, depending on the nature of the right. And it is not just rational basis, and rational basis plus.

Reconceptualizing scrutiny in terms of who bears the burden, and how strong the burden is, offers a better description of what it is that the Court has been doing for two+ decades when they avoid talking about scrutiny, and more importantly, helps to reconcile the court’s meandering from tiers of scrutiny.


One of the lingering questions following Heller is what is the appropriate standard of review for cases brought under the Second Amendment. The Court decidedly did not answer this question of what standard of review applies. Justice Scalia wrote:

Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144 , n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments…”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

It was clear from Heller that a mere rational basis would not suffice, but what does that really tell us? Does it tell us that intermediate scrutiny applies (as most courts of appeals have held)? Or does it tell us that the government cannot overcome this right with *only* a rational basis. This, I think, is the broader import of Scalia’s footnote (a point he escapes from in Windsor). The government needs more of a reason to take away a person’s rights. General public safety rationales won’t cut it. In other words, the government bears some greater burden to show that the infringement of this right is constitutional. Many suspect that this language was added to gather the vote of Justice Kennedy. That would be keeping with this line of jurisprudence.

And this is how, some Circuits have construed this right. For example, here is the 7th Circuit standard as discussed in a recent N.D.Ill opinion,

Nonetheless, the Seventh Circuit explained that “the government does not get a free pass”; “it still must prove that the ban is constitutional, a mandate that flows from Heller itself”; and “putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper.” The Seventh Circuit ultimately applied a form of intermediate scrutiny and upheld § 922(g)(1).

I like the image of putting “putting the government through its paces.” The burden is not insurmountable. It is merely there. Though not all courts have been uniform in applying this burden (even within the 7th Circuit).

Further, the en banc opinion by Chief Judge Easterbrook in Skoien was overly deferential to the government’s interest, and took great pains to marshall evidence outside the record to make the case for the government. In dissent, Judge Sykes noted “This approach fell far short of the legal heavy lifting normally required to justify criminally punishing the exercise of an enumerated constitutional right.”

In an earlier work, I argued that the burdens should only rest with the government if the individual applicant’s social cost warrants it.

Second Amendment chal‐ lenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demon‐ strated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appro‐ priate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.

The Court did nothing in McDonald to clarify this issue, as Justice Stevens noted in his dissent: “standard of review we have not even established.”

So here we have a major Supreme Court case, that fails to identify exact forms of scrutiny, but requires the government to assume a greater burden to justify an infringement of the right.


The trend towards thinking about judicial scrutiny in terms of burden is not limited to 2nd Amendment, or Equal Protection cases, but is also evident in property rights challenges, most prominent in Kelo v. City of New London. When teaching this case last term, something jumped out from Justice Kennedy’s pivotal concurring opinion. First, he recites without approval the overly deferential rational-basis-esque tests from Midkiff and Berman, and analogizes them to Beach and Lee Optical:

This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U.S. Const., Amdt. 5., as long as it is “rationally related to a conceivable public purpose.”Hawaii Housing Authority v. Midkiff,467 U.S. 229, 241 (1984); see also Berman v. Parker,348 U.S. 26 (1954). This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses, see, e.g.FCC v. Beach Communications, Inc.,508 U.S. 307, 313—314 (1993); Williamson v. Lee Optical of Okla., Inc.,348 U.S. 483 (1955). (emphasis my own).

Broadly speaking, Kennedy says that under the Court’s preferred approach, like in Lee Optical, the Court will not second-guess the determinations of the legislature. If the ends are constitutional, the means will not be judged. (Who cares if the obvious purpose of the “comprehensive plan” was to give it to Pfizer.) As long as a non-stupid-staffer was willing to prepare a report suggesting that the land would benefit the community, that is enough. But Kennedy did not join that approach in full. He wrote separately to stress that if there was evidence of shenanigans–even if the government had some rational basis on which to support the law–he would find a taking. The government has this burden to rebut.

The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.

And what cases does AMK cite for this proposition? Our favorite cases that place a burden on the government, while purporting to apply rational basis plus review.

  A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications. See Cleburne v. Cleburne Living Center, Inc.,473 U.S. 432, 446—447, 450 (1985); Department of Agriculture v. Moreno,413 U.S. 528, 533—536 (1973).

Here, a different type of rational basis review, as exemplified by Cleburne and Moreno (and I would add Romer), in which the court must look under the hood, and not take the government’s word for it. Another case where Justice Kennedy is ambivalent about the type of scrutiny, but specifies that in certain cases, the government bears a higher burden to show that it did not possess an improper motive.

Lawrence v. Texas

In Lawrence, Justice Kennedy famously declined to set a standard of review, speaking instead broader in terms of dignity and liberty interests. As Justice Scalia wrote in his dissent:

Though there is discussion of “fundamental proposition[s],”ante, at 4, and “fundamental decisions,” ibid. nowhere does the Court’s opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.”

Scalia also takes note of Justice O’Connor’s approach to apply a “more searching form of rational basis review.”

   Justice O’Connor simply decrees application of “a more searching form of rational basis review” to the Texas statute.Ante, at 2. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v.Evans, 517 U.S., at 635; Cleburne v. Cleburne Living Center, Inc.,473 U.S. 432, 448—450 (1985); Department of Agriculture v.Moreno413 U.S. 528, 534—538 (1973). Nor does Justice O’Connor explain precisely what her “more searching form” of rational-basis review consists of. It must at least mean, however, that laws exhibiting “ ‘a … desire to harm a politically unpopular group,’ ”ante, at 2, are invalid even though there may be a conceivable rational basis to support them.

Scalia speaks of Cleburne and Moreno as “conventional rational-basis analysis.” Both Kennedy, and O’Connor’s versions of scrutiny shift the brudens somewhat. Even though there may be some rational basis on which to pass the law, the state now has a burden to disprove improper motives for other grounds to support the law. Are you seeing a trend here about the relationship between burden and scrutiny?

Windsor Oral Argument

This dynamic was on full display in oral arguments in Windsor in a colloquy between Paul Clement and Justice Kagan. Kagan stressed that in 1996, when DOMA was passed, one of the reasons provided by the House for the law was the “moral disapproval of homosexuality.” There were lots of other bases that were probably legitimate, but this one was in there.

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

Clement responded, candidly, that this was never the appropriate standard. In other words, the government (pretend Clement actually represents the government) never bore that burden. If the government had that that burden, Clement conceded that he loses.

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

It’s not enough for the government to show *some* reason why the law is constitutional. It now must assume the burden raised by the challengers.

Justice Breyer’s questioning of Clement reflects this heightened burden for the government:

MR. CLEMENT: Again, I think the right way to analyze it would be, you know, is — is there any distinction drawn that implicates what level of scrutiny is implicated. If the level of scrutiny is a rational basis, then my answer to you would be, yes, they can do that. I mean, we’d have to talk about what the rational basis would be -­

JUSTICE BREYER: No, there isn’t any. I’m trying to think of examples, though I just can’t imagine what it is.

MR. CLEMENT: Well, I — I think the uniform treatment of individuals across State lines -­

JUSTICE BREYER: All right. So you’re saying uniform treatment’s good enough no matter how odd it is, no matter how irrational. There is nothing but uniformity.

Later Clement rejected Justice Breyer’s efforts to place these additional burdens on him:

JUSTICE BREYER: What, in your opinion, is special about this homosexual marriage that would justify this, other than this kind of pure uniformity, if there is such a thing?

In other words, Breyer is heaping burdens on the government beyond the single stated goal of uniformity. Clement didn’t want to go there.

MR. CLEMENT: Well, let me — let me just get on record that — to take issue with one of the premises of this, which is we are at somehow rational basis-plus land, because I would suggest strongly that three levels of scrutiny are enough.

Even Solicitor General Verrilli articulated that DOMA only survives if the Court applies Lee Optical-style rational basis review, in which all the burdens rest with the challengers.

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.

Under traditional rational basis review, the government can manufacture a justification, or give one that is not persuasive. But here, the justification must be “sufficiently persuasive.” As Damon Root noted, this is a rare instance in which the United States disclaimed federal power.

Verrilli made a similar point during oral argument in the Prop 8 case.

First, every warning flag that warrants exacting scrutiny is present in this case. And Petitioners’ defense of Proposition requires the Court to ignore those warning flags and instead apply highly deferential Lee Optical rational basis review as though Proposition were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law.

It was noteworthy that Lee Optical is mentioned nowhere in the government’s brief. This line was impromptu. Odd, as Verrilli is usually so careful. At the time I wrote, “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.” This was right.

Which brings us to the Windsor opinion, which, other than Kennedy’s fluffy language, kills DOMA because of the good motives (uniformity) are only incidental, and the principal motive is (harming dignity. Just like Kagan and Clement talked about (I continue to be so impressed with Justice Kagan’s skills. Her performance during the ACA oral arguments was masterful).

United States v. Windsor – Kennedy

Keeping with his pattern, Justice Kennedy makes no effort to fit his analysis into any tier of scrutiny. Rather, he describes the nature of analysis the court must apply, and the appropriate burdens the challenger and plaintiff must meet.

First off, is this case about Due Process or Equal Protection? Kennedy’s opinion in Lawrence cited the former, O’Connor’s opinion cited the latter. It seems Windsor cites both.

By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954)

The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment.

DOMA writes inequality into the entire United States Code.

The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

Again, it is unclear exactly how it violates the 5th Amendment. In his dissent, Scalia highlights the fact that Lawrence was not an equal protection case, and reminds us that the 5th Amendment lacks an equal protection clause:

The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe, 347 U. S. 497 (1954), Department of Agriculture v. Moreno, 413 U. S. 528 (1973), and Romer v. Evans, 517 U. S. 620 (1996)—all of which are equalprotection cases.5 And those three cases are the only authorities that the Court cites in Part IV about the Constitution’s meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex couples, ante, at 23.

5 Since the Equal Protection Clause technically applies only against the States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing with federal action, relied upon “the equal protection component of the Due Process Clause of the Fifth Amendment,” Moreno, 413 U. S., at 533

Kennedy’s explanation of Bolling doesn’t make much sense to me:

The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217–218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

Scalia chides the majority for relying on substantive due process–a doctrine he succumbed to in McDonald to incorporate the Second Amendment.

The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean.

So how does Kennedy justify his opinion? He looks to Moreno for the proposition that a desire to harm people won’t justify discriminating against a group.

The Constitution’s guarantee of equality “must at the very least mean that a bare con- gressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Depart­ ment of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an un- usual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633).

What does this mean? The government cannot simply wave their hands, or make up rationales for why a law is valid. They have the burden of showing that legitimate reasons undergirded the law. If the real reason was desire to harm” a group, the burden is not met. This is the essence of the colloquy between Kagan and Clement.

So how will the Court know if this burden is satisfied? Kennedy looks to (what seems to be a new standard of) “careful consideration”:

In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an un- usual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633).

Then, Kennedy abruptly turns to some federalism concerns (which I will address in another point). Later, Kennedy comes back and look at the purposes and effects of the law:

This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

But what about the rationales behind the law?

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.

Kennedy looks to the record to see what reasons Congress proffered by the law, citing the House report Kagan mentioned.

The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.

And AMK is not persuaded by the explanations provided (in other words, it didn’t meet the burden).

The arguments put forward by BLAG are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted.

That’s it. Kennedy doesn’t even engage any of the reasons BLAG offers (as pointed out by Scalia and Alito).  He promptly disregards the reason offered, government uniformity (which he relabels “efficiency”):

DOMA’s principal effect is to identify a subset of statesanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.

It is not enough that the government has one valid reason, or even a secondary reason why a law is passed. What counts is the “principal purpose” (a phrase he uses a few times, and the Chief mentions in his dissent).

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its mar-riage laws, sought to protect in personhood and dignity.

Again, it is the purpose, and the effects that define the outcome of the case, not (whatever) personhood and dignity (are).

The real reason, with negative motivation, spells the end of DOMA. This reminds me of the mixed motives analysis in employment discrimination law, where, in some cases, having a negative motivation for a law, as well with a legitimate business reason, renders the employment action okay. In other words, if the action was done for a bad reason, but the action *could* have also been made for a legitimate reason, then no liability.

Indeed, while Kennedy looks to the “purpose” of the law, and the “effects,” the thumb is weighted on the side of the effects, with little deference to the purposes offered (only the “principal purpose” matters).

 What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

AMK placed an insurmountable burden on the government’s position in light of the law’s obvious history (whether this insurmountable burden is appropriate here is an entirely different question–I’m inclined to think it is appropriate). No surprise they didn’t meet it. As Clement said, if this is the government’s burden, and one negative statement will warrant the law’s unconstitutionality, the government will lose.

Here, we have another opinion where Kennedy refuses to identify a tier of scrutiny, and, underneath fluffy language about dignity, finds that the government fails to justify that there is a valid reason for the law. This is crux of the opinion, which all three dissenting Justices aim to rebut. First, Roberts.

Windsor – Roberts

Roberts writes separately, agreeing with Scalia, that the legitimate interests (uniformity of federal law) are enough for the government to meet its burden. Without ignoring the negative material in the House Reports, Roberts would dismiss the mixed motive challenge.

On the merits of the constitutional dispute the Court decides to decide, I also agree with JUSTICE SCALIA that Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability am- ply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world. Post, at 19–20 (dissenting opinion)

Roberts emphatically rejects that a “more sinister motive” is the “principal purpose” behind the law (or more precisely, is more skeptical about being persuaded that is the primary purpose):

The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past . . . . That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising— and hardly enough to support a conclusion that the “principal purpose,” ante, at 22, of the 342 Representa- tives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snip- pets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing.

Roberts very clearly states that he needs more evidence to find an improper motive–that is, more evidence from the challengers. This suggests that Roberts would place a much smaller burden on the governmetn.

At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.


Windsor – Scalia

Justice Scalia attacks AMK’s position for its failure to identify a tier of scrutiny, and echoes the point he made in his Lawrence dissent.

 Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality. See United States v. Virginia, 518 U. S. 515, 567–570 (1996) (SCALIA, J., dissenting)

Scalia, who in Lawrence called Cleburne and Moreno as “conventional rational-basis analysis,” refers to them here as “deferential framework.”

As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification “‘must be upheld . . . if there is any reason- ably conceivable state of facts’” that could justify it).

Scalia, like Roberts, would not be so quick to find that an improper motive undergirds DOMA. (In my opinion, Scalia’s hyperbole mischaracterizes a number of positions taken by the majority, so I will avoid discussing them here, but that is the general gist).

Windsor – Alito

Justice Alito’s characterization of the majority opinion is even more elucidating on this front. Alito begins by highlighting what would generally be accepted as the three tiers of scrutiny.

The modern tiers of scrutiny—on which Windsor and the United States rely so heavily—are a heuristic to help judges determine when classifications have that “fair and substantial relation to the object of the legislation.” Reed, supra, at 76. So, for example, those classifications subject to strict scrutiny—i.e., classifications that must be “narrowly tailored” to achieve a “compelling” government interest, Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007) (internal quotation marks omitted)—are those that are “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.”

Note how he places the phrase “So-called” before immediate (he does not do so for strict), as if to say it is not really real (this is like a written eye-roll).

In contrast, those characteristics subject to so-called intermediate scrutiny—i.e., those classifications that must be “‘substantially related’” to the achievement of “important governmental objective[s],” United States v. Vir­ ginia, 518 U. S. 515, 524 (1996); id., at 567 (SCALIA, J., dissenting)—are those that are sometimes relevant considerations to be taken into account by legislators, but “generally provid[e] no sensible ground for different treat ment,” Cleburne, supra, at 440.

He also places “so-called” before rational basis.

Finally, so-called rational-basis review applies to classifications based on “distinguishing characteristics relevant to interests the State has the authority to implement.” Cleburne, supra, at 441

Which brings us to Alito’s framing of the issue:

In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools. By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage.

Viewed in the tiered vision of the issue, this is probably right. But the way the majority looked at it was captured in the colloquy between Kagan and Clement (who may soon be colleagues). Kagan asked the government to explain why there were some improper motives underlying DOMA. If those motives could not be explained away, the government has failed to meet its burden. After Alito discusses competing visions of marriage, he turns to the heart of the scrutiny inquiry–what should be done about different motivations for passing a law.

We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. See, e.g., Rust v. Sullivan, 500 U. S. 173, 192 (1991) (“[T]he government ‘may make a value judgment favoring childbirth over abortion’” (quoting Maher v. Rue, 432 U. S. 464, 474 (1977))).

The majority argues that having a vision of the good is not enough for constitutionality. Instead, the vision of the good of some, or even one member (citing “moral disapproval”) is not really good.

There is a fundamental disagreement about the scope of judicial review here, that explains the chasm between the majority and dissent. All of the opinions differ on this one point. Indeed, I would posit that how the Court chooses to frame the issue reflects deeper concerns about the role of judicial review.

Moving Forward

I am working on an article now that catalogues every single case in which the Court has purported to apply some form of rational basis review, and indexing how the burdens were assigned, and how the court weighed those burdens of persuasion. I hope to have this ready a full-length law review article by the fall. I was hoping for some good stuff in DOMA to help the article, but I got a bounty.