Adam Shelton · May 21, 2021

Winds of Change

This is the fourth and final post in a series examining the origins and evolution of the rational basis test. The first post explored the origins of the test found in the opinions of Justice Harlan, Justice Holmes, and the writings of James Bradley Thayer. The second examined how the test became established during the New Deal Era and how it developed from a generally deferential test to an even more deferential “test.” The third examined the hopefully high-water mark of the “test” with two 1993 Supreme Court cases F.C.C. v. Beach Communications and Heller v. Doe.

This final post will mark what will hopefully prove to be a turning point in the rational basis test. Recently, there have been (small and intermittent) signs that the test may be becoming less deferential towards the government. Those signs exist both in federal and state courts.

But first, a quick refresher. The rational basis test is one of the three tiers of scrutiny the Court employs when evaluating constitutional challenges to laws, orders, and regulations. The level of scrutiny the Court will use, or how closely the Court will look at a law, depends on the right a person accuses the government of violating. Some rights, like free speech, will receive meaningful protection from the judiciary. When evaluating laws challenged as a violation of free speech, the courts will generally apply something known as “strict scrutiny.” This means that courts will only uphold the law if the government can prove that it is narrowly tailored to achieve a compelling government interest. Courts will also require such a showing if the law discriminates against discrete and insular minorities.

A few other rights, such as sex discrimination and commercial speech, will receive various versions of “intermediate scrutiny,” where the burden is on the government to demonstrate the law is constitutional, but it’s a less demanding requirement than strict scrutiny. Still, courts often do rule against the government under this standard.

But other rights are not so lucky. Private property rights and the right to earn an honest living are generally only protected by the rational basis test. When a person challenges a licensing law for violating his right to earn an honest living, the Court will require her to prove that the law is not rationally related to any legitimate government purpose. That is, for most rights, the burden is on individuals to prove that the government is violating their rights, rather than requiring the government to prove what it is doing is constitutional.

Originally, when the Court started employing the rational basis test in earnest during the New Deal Era, the Court did require at least some level of rationality. For example, in Nebbia v. New York (1934) the Court explained that even under the rational basis test, a law still could not be arbitrary or discriminatory. Yet that requirement was all but abandoned by 1955 when the Supreme Court decided Williamson v. Lee Optical. There, the Supreme Court held that even a law that enacts needless requirements and that lacks logical consistency could be constitutional, even where the law only might solve a perceived problem.

Yet there have been some recent cases in both federal and state courts which suggest the rational basis test may be becoming more of an actual test again.

It’s Just a Wooden Box

One of the best examples of this is an IJ case involving the Benedictine monks of St. Joseph Abbey in Louisiana. The monks had long made plain wooden caskets for themselves and some other members of the clergy. After a public funeral for a bishop who was buried in a casket made by the monks, members of the public became interested in purchasing the caskets for themselves. The monks decided to offer caskets for sale to the public—caskets that were much less expensive than those currently on the market.

But Louisiana required anyone who sold caskets to first obtain a funeral director’s license. To get a license a person had to go through rigorous training that included topics irrelevant to simply selling caskets, like the embalming of bodies. But selling caskets was all the monks wanted to do.

The state asserted that the license was needed to protect consumers from dangerous products and to protect the general health and safety of the public. In other words, the state’s position was that the sale of caskets by individuals not licensed as funeral directors endangered public health and safety. But in the training program for aspiring funeral directors, there was nothing related to the making or sale of caskets. Louisiana also allowed for people to make their own caskets and, most importantly, didn’t even require people to be buried in caskets. Under Louisiana law, a person could be buried straight in the ground if they desired.

Under the rational basis test formulation in Supreme Court cases like Williamson v. Lee Optical and F.C.C. v. Beach Communications, it is hard to imagine the Fifth Circuit striking down this law. In Lee Optical the Supreme Court explained that “a law may exact a needless, wasteful requirement in many cases” but concluded that “the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it” (emphasis added). While this language, and much of the language expounding on the rational basis test in Lee Optical and Beach Communications can arguably be described as nothing more than dicta, it has been frequently relied upon by lower courts in applying the rational basis test. What is more, the Court in Lee Optical did not require the government to present actual evidence that there was an evil at hand.

Yet in St. Joseph Abbey v. Castille, the Fifth Circuit acknowledged that the rational basis test does not require judicial blindness nor does “it require courts to accept nonsensical explanations for regulations.” In line with this, the Court rejected the reasoning presented by Louisiana and held that the requirement to obtain a funeral director’s license to sell caskets was unconstitutional.

State Courts Take the Lead

This victory was important and has marked a change in the way some federal courts approach litigation under the rational basis test. But state courts have been the grounds of true reform when it comes to economic rights, like the right to earn an honest living.

For example, the Supreme Court of Texas in Patel v. Texas Department of Licensing and Regulation (2015) held unconstitutional a Texas regulation that demanded that eyebrow threaders obtain expensive and irrelevant licenses in Western-style cosmetology. A license required the applicant to attend beauty school which consisted of 750 hours of training. But not one of those hours focused on the practice of eyebrow threading, an ancient practice from South Asia and the Middle East that is new to America. And neither test for the license required any knowledge of eyebrow threading.

In coming to this decision, the Supreme Court of Texas notably broke with federal courts in their interpretation of economic regulations. The court explained that the Texas Constitution required something more than the rational basis test for economic regulations—or at least, something different from the rational basis test of Williamson v. Lee Optical and Beach Communications. The court explained that not only must they weigh the reasonableness of the regulation but also the burden that those regulations impose on ordinary people. This is a marked difference from the federal rational basis test which does not consider the burden it imposes but only its rationality.

Another example of this can be seen in a 2020 decision of the Georgia Supreme Court in Jackson v. Raffensperger. There, a group of lactation consultants challenged a new Georgia law that would require lactation consultants to obtain a license to keep working. To obtain the license the consultants must become certified by the International Board of Lactation Consultant Examiners, which would require an individual to take roughly two years of college courses and complete more than 300 hours of supervised clinical work. The Supreme Court of Georgia in examining the law explained that “the Georgia Constitution’s Due Process Clause entitles Georgians to pursue a lawful occupation of their choosing free from unreasonable government interference” (emphasis added). Yet reasonability was not the key consideration of the Supreme Court in cases like Lee Optical and Beach Communications. The Court there was focused on whether there was anything at all that could justify the law—reasonableness was not a real concern for the Court.

Hope for Judicial Engagement in the Future

The deferential form of the rational basis test is still ascendant. But cracks are starting to show. More and more, it seems as if the pre-Lee Optical rational basis test may be returning. For instance, in Nebbia v. New York the Supreme Court explained that even under the rational basis test, a law still could not be arbitrary or discriminatory. And the courts cannot determine whether a law is arbitrary or discriminatory without looking at the burden that it imposes on the individuals challenging the laws.

It has been a long road to get to the point where both federal and state courts are beginning to rethink how deferential they should be when evaluating economic regulations. But there is still a long way to go. It seems that every time a court strikes down an economic regulation for violating due process, the dissenting judges or justices claim that it is a return to the Lochner Era. There is still much to do to convince courts that real judging—that is, judicial engagement—requires the courts to examine the facts and evidence in every case that comes before them. That courts should not put their thumb on the scale in favor of the government. But the fact that courts are starting to come around and are retreating from the most deferential form of the rational basis test offers hope for the future.

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement