Facts, Not Fantasy

Anthony Sanders · December 4, 2020

We at the Institute for Justice enjoyed a lovely victory the other day, on behalf of our long-time client Dr. Ron Hines. Ron is a Texas veterinarian challenging the state’s ban on giving advice to pet owners without having first seen the pet in-person. He wants to do so over the internet, a communication tool all of us have become all-too-familiar-with in the last year, if we (like Ron) hadn’t already. He argues that the law violates the First Amendment because it’s an unreasonable restriction on what he can say to his clients. He made this argument before, several years ago, in a previous lawsuit with IJ, and the U.S. Court of Appeals for the Fifth Circuit disagreed. But, since then the U.S. Supreme Court has changed the law in the area, which has enabled Ron and IJ to go back to court. On Wednesday the Fifth Circuit agreed, ruling that its previous opinion on Ron’s claims no longer applied and he can move forward with his case.

But Ron isn’t only making a First Amendment challenge. He also has an equal protection claim. And it’s that part of Wednesday’s opinion I’m writing about today: the latest battle over how “rational” the rational basis test is.

The story doesn’t start with Ron’s first case, but another IJ case in the Fifth Circuit, St. Joseph Abbey v. Castille (2013). There, the monks (yes, actual monks) of the abbey were threatened with prosecution for selling hand-crafted caskets without a funeral director’s license. Not only that, they also had to have the provisions of a funeral establishment, including an embalming room. The monks sued, arguing that there is no rational basis for requiring the building of facilities they’d never use and a license that costs thousands of dollars to obtain and requires hundreds of hours of training in subjects that have nothing to do with the simple act of selling a casket. Which is, at the end of the day, just a box.

And the Fifth Circuit agreed. It rejected the Louisiana Funeral Board’s argument that pure economic protectionism—to protect the profits of licensed funeral directors—is a legitimate government interest, and it dispatched with any actual legitimate interests, such as health and safety, being furthered by the law. One of the most important lines from the opinion is that “a hypothetical rationale, even post hoc, cannot be fantasy.” That is, even if a court is just making up a reason that could support the law (which the Supreme Court has actually said courts should do), the reason has to make some kind of sense, and not just under some fantastical factual assumptions. For example, the funeral board argued that the licensing law helped protect consumers from being taken advantage of, but the facts showed that funeral directors were not even required to be trained in customer service.

In Wednesday’s opinion, the abbey case took center stage both in the majority’s and the dissent’s treatment of the equal protection claim. Ron Hines’ argument is that since doctors can provide advice to humans without first seeing them in person (Texas legalized the practice in 2017), but veterinarians cannot do the same to animals, the differing treatment violates equal protection. The dissent applied St. Joseph Abbey and said any justification for this difference is nothing short of fantastical. The government argued that humans are different because then the doctor can speak to the patient, but with a pet that’s just not the case (well, apart from parrots, perhaps). But the dissent pointed out that a doctor can provide advice about babies, even though babies are not going to be talking.

Unfortunately, the majority took this “fantasy” lesson much more fantastically. It concluded that the ability to speak to subjects, and the different training that doctors and vets receive, were legitimate justifications for the distinction. Playing a card that many courts have played while hand-waiving away arguments in rational-basis cases, the majority concluded that a “classification may be underinclusive or overinclusive and still survive rational basis review.” That is, the law doesn’t have to actually make a lot of sense. And that’s enough.

While the more extreme reading of the rational basis test seems to have won this round, the split among the judges, and the continuing relevance of the abbey case, demonstrate that opposition to the test is very much alive, and perhaps even growing. Many other recent opinions, in both federal and state court, have pushed back against extreme applications of rational basis review. Although this could be the end of the road for Ron’s equal protection claim (but very much not his First Amendment claim), there’s a lot of row to hoe in the continuing effort to put the rational basis test on trial and make the Constitution about facts, not fantasy.

Anthony Sanders is the Director of IJ’s Center for Judicial Engagement.