Rational Reviews, Irrational Results*

There are problems with deciding cases based on factors not encompassed by the applicable standards. First, the approach is rudderless, affording no notice to interested parties of the standards governing particular cases and giving no firm guidance to judges who, as a consequence, must assess the

constitutionality of legislation before them on an ad hoc basis. Second, and not unrelatedly, the approach is unpredictable and requires holding this Court to standards it has never publicly adopted. Thus, the approach presents the danger that, as I suggest has happened here, relevant factors will be misapplied or ignored. All interests not "fundamental" and all classes not "suspect" are not the same . . . .

-Justice Thurgood Marshall1

Our jurisprudence displays a remarkably nominal fealty to rational basis review, leaving it little more than a hollow test. In some instances, the test being applied is a rational basis test in name only. In Romer v. Evans,2 for example, the Supreme Court stated that it was applying rational basis review to the Colorado anti-gay-rights amendment,3 yet the subsequent analysis did not resemble traditional rational basis review.4 In other cases, the Court is unwilling to apply intermediate or strict scrutiny but also directly expresses reluctance about rational basis review's capabilities. In Lawrence v. Texas,5 Justice O'Connor suggested that the majority was applying something more than conventional rational basis review but less than intermediate or strict scrutiny.6 In fact, the application of traditional rational basis review in one case is often quite distinct from its iteration in other cases.7

Rational basis review is fundamentally flawed. Underlying rational basis review are few of the normative principles that would lend it coherence, guidance, or a relatively high degree of certainty and predictability. This lack of principle has resulted in the formulation and application of a test in which the government's interests will almost always prevail over the individual's.

Under rational basis review, governmental action must not cross the threshold of arbitrariness.8 However, the government's interests may be construed broadly while the individual's interest is construed narrowly.9 This synthesis, which paradoxically weds a heavy presumption that the governmental conduct at issue is constitutional with a fear of tyrannous governmental behavior,10 guarantees that governmental actions, ordinances, and statutes will nearly always be seen as legitimate, irrespective of the strength of the individual's interest and regardless of the larger constitutional regret that denying such an interest may entail. The thumb on the scale in favor of governmental interests may be characterized as a sort of predictability, but this is not the kind of predictability we should seek. Predictability should not guarantee that a specific party will generally prevail. Rather, the consistency of rational basis review should derive from a well-defined set of criteria that do not shift based on whether the Justice penning the majority opinion cites to Romer, Lawrence, or FCC v. Beach.11

In this Note, I propose modifying rational basis review by infusing it with the equivalency principle set forth by Justice Blackmun's dissent in Employment Division v. Smith.12 Under this new rational basis test, constitutional review will demand that the construction of the governmental interest be congruent with the identification of the individual's interest. In other words, if a court determines that the individual's liberty interest is something as narrow as the right to smoke marijuana in the privacy of one's home, the court may not construe the government's interest in an ordinance banning possession of marijuana as broadly as, say, the interest in ensuring public health and safety. Rather, the court should construe the ordinance as furthering the government's interest in the prevention of drug abuse, for example, or the government's interest in preventing drug trafficking. Such lofty goals as public health and safety are a priori legitimate ends of government action and thus can never be deemed irrational.13

This is not to suggest that the Court is unaware of the importance of properly construing the governmental and individual interests at stake.14 Rather, the disparity in interests under rational basis review stems from the Court's schizophrenic oscillation between various approaches to the test. As rational basis currently stands, the Court waffles between a single-prong and dual-prong rational basis test; or, in other cases, two versions of the dual-prong test. When the Court applies its single-prong test, it finds the governmental action legitimate if there is any rationally conceivable basis for the government's conduct.15 By contrast, the dual-prong approaches ask not only whether a rational policy goal exists, but also whether the actual government action taken is justifiable. Under one version of the dual-prong test, the purpose of the governmental action must be rational and the government officials' achievement of this purpose must not be irrational or arbitrary. As long as there is any conceivably rational purpose for the action and it is achieved through a rationally conceivable choice of means, the plaintiff will not prevail.16 Under the other dual-prong test, a court may not conjure up conceivable purposes but must ask about the legitimacy of the actual purposes. If the actual purposes are deemed rational, a court must then examine whether the governmental action at issue bears a "fair and substantial relation" to the realization of those purposes.17

The single-prong test is extraordinarily deferential to governmental discretion and, if used in every application of the rational basis test, effectively would be the death of rational basis review. What judge or panel of judges, if they set their minds to it, could not conceive of a rational purpose animating any governmental action? Potential plaintiffs (and their lawyers) would soon get the message, and claims invoking minimal scrutiny would eventually evaporate.

The dual system of checks on governmental conduct offered by the two-prong test is thus preferable to the single-prong test. The dual-prong, "any conceivable purposes" model, however, offers cold comfort as a replacement for the single-prong method. Although the dual hurdles the government must clear to survive minimal scrutiny ostensibly present a tougher burden on the government, the emphasis on "any conceivable purposes" in this test-as in the single-prong application-makes it nearly impossible for a plaintiff to prevail. No court, already operating under a presumption that the government's action is constitutional, would be unable either to envision or invent a rational purpose underlying the governmental conduct or view that conduct as a conceivably rational approach to realizing that purpose. Moreover, under the more deferential version of the dual-prong test, which employs the "any conceivable purposes" theory, a court will construe the governmental interest at a very high level of abstraction while narrowly restricting the citizen's interest to the actual activity or conduct in which the citizen claims a liberty interest. Because courts examine the narrowly defined interest of the individual plaintiff, a rational basis test based on the equivalency principle will likewise demand that courts identify the government's narrowly defined purposes.18

Part I of this Note will offer an overview of the contemporary history of rational basis review to demonstrate its incoherence and the need for a revamping of the test. Part II will examine Blackmun's dissent in Employment Division v. Smith19 and discuss the importation of the principles he articulated in that case, involving strict scrutiny review under the Free Exercise Clause, to the lesser-scrutiny review of rational basis. Part III will explain the parameters and nature of the proposed rational basis test. Finally, Part IV will apply the proposed test to a recent case, Doe v. City of Lafayette.20 In Doe, the Seventh Circuit affirmed summary judgment for the City of Lafayette, which had issued a ban indefinitely prohibiting sexual offender John Doe from entering municipal park grounds.21 In upholding summary judgment, the Seventh Circuit construed the City's interest at a broad level of abstraction while construing Doe's interest much more narrowly. Such an utterly disproportionate identification of the parties' respective interests ensured that the City would prevail before the case could even be considered on the merits. Although the Seventh Circuit may arguably have still held for the City upon examining Doe's Fourteenth Amendment complaint under this Note's proposed test, that outcome would have more appropriately demonstrated the dedication to fairness to which the Due Process Clause and rational basis review profess allegiance.22

I. Overview of Rational Basis Review

A. Parameters of the Current Test

The Supreme Court officially included rational basis review in the framework of judicial review when it handed down Carolene Products with its infamous footnote four.23 Rational basis review forms part of a three-tiered standard of review that judges must employ when faced with a case that implicates either substantive due process or equal protection claims.24 Within this framework, governmental encroachments on fundamental rights-the first tier-are subject to strict scrutiny, requiring the government to show that its action or measure, although constitutionally suspect, is necessary to realize a compelling state interest.25 The second tier-intermediate scrutiny-is typically initiated when there is gender-based discrimination or discrimination against nonmarital children. Under this level of judicial review, courts will uphold any law that is substantially related to an important government interest.26 Under both strict and intermediate scrutiny, the government carries the burden of showing that its interest justifies the intrusion on individual liberty.27 Rational basis review-the third tier-requires the minimum level of scrutiny and is warranted when the alleged constitutional infringement does not invoke strict or intermediate scrutiny.28 Under this deferential standard, in which the complainant carries the burden of proof, the governmental action need only be rationally related to a legitimate state interest to defeat the plaintiff's suit, and under dual-prong iterations of the test the methods chosen by the government must be rational means to achieve that purpose.29 At its core, rational basis review reflects the basic principle that government cannot act in an arbitrary manner.30

This core characterization, however, may be all that can be agreed upon when it comes to the nature and application of rational basis review.31 As noted above, for example, when weighing the legitimacy of the government's purpose, Justices have disagreed as to whether the government's proffered justification for the law must be the actual purpose behind the official conduct or whether it may be any conceivable purpose that meets the standards for legitimacy under the test.32 Similarly, some Justices imply that within rational basis review there may be a sliding-scale test that incorporates the "traditional," "something more," and "rational basis with a bite" standards of review, whereas other Justices believe that the definition of rational basis review is and should be consistent with only one of these approaches.33 Indeed, this state of affairs led Justice Rehnquist, in his majority opinion in U.S. Railroad Retirement Board v. Fritz, to conclude that even

[t]he most arrogant legal scholar would not claim that all . . . cases applied a uniform or consistent [rational basis] test under equal protection principles. And realistically speaking, we can be no more certain that this opinion will remain undisturbed than were those who joined the opinion . . . in any of the other cases referred to in this opinion and in the dissenting opinion.34

Rehnquist articulates this undeniably true statement in a matter-of-fact stance rather than viewing this fact as cause for concern, alarm, or action.

Despite Rehnquist's apparent indifference, this lack of uniformity should be cause for concern. The inevitable result is that both the individual and the government always have precedent on their side in a dispute, causing judicial decisionmaking to be exactly what the Due Process Clause strives to prevent-arbitrary action by governmental actors. Rehnquist's observation that it would reach the pinnacle of arrogance to suggest a refraining of the test to guarantee more consistency rings hollow and is a rather extraordinary posture for a Supreme Court justice to take.35 Some tweaking of the current test would be all that is needed to create the consistency Rehnquist considers so elusive. The discussion of how to tweak the test follows in the next Parts. For now, however, I turn my attention to identifying the disagreements regarding rational basis review in an effort to understand how Justice Rehnquist could make the observation in Fritz that he did.

B. A More Searching Form of Rational Basis Review? Or an Intermediate Scrutiny that Dare Not Speak Its Name?

For many critics of rational basis review, one of the largest problems with the test is the Court's inconsistency in applying it. Many commentators point out that there are actually two levels of rational basis review: good old-fashioned, deferential rational basis review and a more demanding, heightened version-one with "teeth."36 The Supreme Court applies its very deferential version of rational basis review in the majority of substantive due process and equal protection cases before it.37 There are a handful of cases, however, that ostensibly apply minimal scrutiny but do not resemble the typically deferential approach to rational basis review in their reasoning.38 Moreover, these cases, unlike typical rational basis cases, usually hold that the governmental action is unconstitutional.39 For many observers, it is the presence of these toothy rational basis cases that highlights the need for either a clearer articulation of the elements of the test or an abandonment of the rational basis test in favor of a more rigorous alternative.40

In City of Cleburne v. Cleburne Living Center, Inc., for example, the Supreme Court purported to employ rational basis review in striking down a zoning ordinance enacted by the City of Cleburne, Texas.41 The ordinance required a special-use permit to operate a group home for mentally retarded individuals.42 Justice White concluded that the Court of Appeals erred in holding that the mentally retarded are a quasi-suspect class, and thus that any government conduct directed towards them must survive heightened scrutiny: "Heightened scrutiny inevitably involves substantive judgments about legislative decisions, and we doubt that the predicate for such judicial oversight is present where the classification deals with mental retardation."43 Thus, the majority held, the standard of review appropriate under the facts of Cleburne was rational basis. As long as the Cleburne zoning ordinance was rationally related to a legitimate governmental purpose, the classification would withstand constitutional scrutiny.44

Commentators generally suggest that White protests too much about heightened scrutiny; after all, critics assert, White's application of rational basis review in this case is heightened scrutiny.45 One of the "nibbles" in White's rational basis test in Cleburne was its requirement that the City of Cleburne demonstrate the underlying facts behind its stated purposes in passing the zoning ordinance.46 Under traditional (i.e., deferential) rational basis, the actual purposes behind a governmental action are largely irrelevant. As long as the Court can posit that some conceivable and legitimate governmental interest exists to justify the conduct, the statute will not be disturbed.47 By contrast, the Cleburne majority examined the actual purpose behind Cleburne's ordinance and concluded that it was ultimately based "on an irrational prejudice against the mentally retarded," not on a legitimate governmental interest.48 The major (and related) "bite" in the majority's construction of rational basis review was its shifting of the burden to the Cleburne legislature to assure the Court that its classificatory demarcation was legitimate.49 After reviewing the record, White concluded that it was "difficult to believe" that mentally retarded individuals would pose a distinct safety hazard.50

Joined by Justices Brennan and Blackmun, Justice Marshall unequivocally chided the Court for its pretense in applying the rational basis test: "I cannot accept the Court's disclaimer that no 'more exacting standard' than ordinary rational-basis review is being applied . . . ."51 Indeed, Marshall indicated that rational basis review could not have legitimately led the Court to the conclusion it did and that only a heightened (intermediate) scrutiny would have served to invalidate Cleburne's law.52 In particular, Marshall criticized the majority for placing the burden of proof on the City; under traditional rational basis review "legislation is presumptively constitutional, and a State 'is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference' to its goals."53 Similarly, scholars such as Richard B. Saphire have echoed Marshall's comments that the Court's holding and analysis in Cleburne was "contrary to what one might have expected had [the Court] applied the sort of scrutiny suggested by the [conventional] notion of rationality . . . ."54 In placing a high burden on the government rather than according it great deference, the Cleburne majority's supposed application of minimal scrutiny was rational basis review in name only.

A little over a decade later, in Romer v. Evans, the Court again found a state law invalid under rational basis review.55 In a statewide referendum, Colorado voters passed Amendment 2, a state constitutional amendment that repealed municipal antidiscrimination ordinances to the extent that they prohibited discrimination on the basis of sexual preference.56 Amendment 2 also barred any of Colorado's three branches of government from taking any action in pursuit of protecting gays, lesbians, and bisexuals from discrimination.57 Justice Kennedy's majority opinion concluded that there was no legitimate purpose behind Colorado's law denying gays, lesbians, and bisexuals the same remedial access to the political process; rather, the opinion stated, the law "is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit."58

As in Cleburne, the Romer Court chose not to apply the deferential "any conceivable purpose" element of traditional rational basis review. Instead, in holding that Amendment 2 did not withstand minimal scrutiny, the majority examined Colorado's stated reasons for the law: "[The law's] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable . . . . [T]he amendment is so far removed from [the State's] particular justifications that we find it impossible to credit them."59 Once again, the Court shifted the conventional burden from the plaintiffs to the State without announcing the shift.60 And, once again, the Court relied on rational basis review for resources it does not possess to declare invalid a law that, under a traditional minimal scrutiny application, probably would have been upheld.61

C. Beyond the Two Camps of Rational Basis Review

Although the charge can be made that cases like Cleburne and Romer throw rational basis review into disarray, these cases may be more simply understood as instances of the Court's reluctance to widen the base of groups who qualify for membership as a suspect class. Certainly, both opinions emphasized the animus animating the passage of each piece of legislation and each also concluded that animus towards a particular group qua group could never be constitutionally valid.62 Even though the Court has chosen not to do so, the seemingly simple solution to the problem of "rational basis review with a bite" is to call those cases intermediate scrutiny and use them as important stepping stones in the evolution of intermediate scrutiny.

Such a shift in the tiers of scrutiny, however, would not assuage the difficulties attending the rational basis test. There are several disagreements within the Court about rational basis review that do not even concern whether there are or should be "teeth" to rational basis in certain circumstances. To be sure, some of these contentions appear in the "to give bite or not to give bite" cases. But, as exemplified by the heated debate around which U.S. Railroad Retirement Board v. Fritz is centered, such issues as the level of abstraction used to define the government's interest and the use of "any conceivable purpose" rather than the actual governmental purpose are fundamentally lodged in our rational basis jurisprudence and point to its flaws. In this way, we can see the rise of "rational basis with a bite" as symptomatic of larger problems underlying minimal scrutiny and not just as the Court being coy with itself.

1. U.S. Railroad Retirement Board v. Fritz.-At issue in Fritz was a congressional statute passed to rescue the financially ailing railroad retirement system. The legislation, based on the division of employees into different groups, preserved windfall benefits for some employees but not for others.63 The principal group affected by the law was those individuals who qualified for railroad and social security benefits in 1974-the year of the changeover from the old retirement system to the new one-but who were nevertheless denied windfall benefits because they had left the railroad industry before 1974, had no "current connection" with the railroad industry by the end of 1974, and had less than twenty-five years of service with the industry at year's end.64

A class action suit was filed, seeking a declaratory judgment that the statute violated the Due Process Clause of the Fifth Amendment.65 The suit asserted that Congress had drawn an irrational distinction to determine who would continue to receive windfall benefits and who would not.66 The Supreme Court disagreed, stating that the distinction was rationally related to Congress's purpose of rescuing the railroad retirement system, and denied the plaintiffs' claim.67

Then-Justice Rehnquist began his majority analysis by acknowledging the inconsistent descriptions and applications of minimal scrutiny that appeared early in the Court's rational basis jurisprudence.68 He quickly moved on, though, to point out that-at least in recent cases involving social and economic legislation-the Court had become more consistent: it "consistently refused to invalidate on equal protection grounds legislation which it simply deemed unwise or unartfully drawn."69 This, Rehnquist suggested, highlighted the fact that rational basis is ultimately and primarily concerned with governmental arbitrariness and not with determining the value of legislation.70 Rehnquist then applied these principles to the case by looking to the plain language of the statute and concluded that the language did not demonstrate arbitrary action by Congress.71 In a very curious conclusion, Rehnquist contended that since Congress could have constitutionally eliminated the windfall benefits for all railroad employees, it was thus permissible for Congress to eliminate the benefits for some employees.72

After finding that the purpose of the retirement act was not irrational, Rehnquist indicated that the rational basis test consists of two lines of inquiry. Having answered the first question, the second question for the Court was "whether Congress achieved its purpose in a patently arbitrary or irrational way."73 The majority concluded that as long as there were any conceivably rational reasons for Congress's action, regardless of whether those particular reasons were the ones that motivated Congress, the law passed the test and could not be declared invalid.74 In other words, the Fritz majority held that as long as governmental action is not based on arbitrary classifications and as long as the Court can find or construe plausible reasons for the enactment of the law, it is valid under rational basis review.

Justice Brennan, joined in his dissenting opinion by Justice Marshall, agreed that the aim of rational basis is to prevent arbitrary actions by governments, but he accused the majority of failing to adhere to the Court's "established" approach to minimal scrutiny and "suggest[ed] that the mode of analysis employed by the Court in this case virtually immunizes social and economic legislative classifications from judicial review."75 Brennan criticized the majority for what he deemed were three departures from the Court's rational basis test:

First, the Court adopts a tautological approach to statutory purpose, thereby avoiding the necessity for evaluating the relationship between the challenged classification and the legislative purpose. Second, it disregards the actual stated purpose of Congress in favor of a justification which was never suggested by any Representative or Senator, and which in fact conflicts with the stated congressional purpose. Third, it upholds the classification without any analysis of its rational relationship to the identified purpose.76

Brennan argued that the Court's plain-reading approach to minimal scrutiny, if adopted in full, would result in the Court invariably finding that any contested statute was well-suited to its purpose.77 Brennan further chided the Court for ignoring a line of recent cases indicating that the actual purposes of governmental action must be examined under rational basis and stating that it is inappropriate to weigh the validity of legislation according to a "conceivable basis" standard.78 Rather, Brennan claimed, a law may be found valid "only if it is rationally related to achievement of an actual legitimate governmental purpose."79 Finally, Brennan suggested that the majority's unwillingness to examine whether the challenged statute was truly related to the identified purpose undermined rational basis review by virtually granting the legislature complete, rather than substantial, deference.80

Brennan's version of rational basis review, like Rehnquist's, requires a dual-prong inquiry. For Brennan, however, the first prong directs the Court to ask what the actual purposes of the statute are and whether those purposes are legitimate; under the second prong, the question is whether the statute is rationally related-whether it bears a "fair and substantial relation"-to the effectuation of those purposes.81 Where Justice Brennan was concerned with actual purposes and the relationship between the statute and the achievement of legitimate governmental objectives, Justice Rehnquist's examination focused on whether the statute was arbitrary and, if not, whether there were any conceivably rational reasons to justify the governmental action. It is not difficult to understand how, on the basis of these very different approaches to rational basis review-each of which is strongly grounded in precedent-the Court could continue to muddy the waters of minimal scrutiny in the cases following Fritz.82

2. FCC v. Beach.-Thirteen years after Fritz, the Court decided FCC v. Beach Communications, Inc.83 In Beach, the Court praised its own conception of rational basis review as "a paradigm of judicial restraint" that "preserve[d] to the legislative branch its rightful independence and its ability to function."84 Beach left the teeth but chopped out the tongue of minimal scrutiny.

In Beach, the Court was only concerned with whether there were rational reasons for Congress's legislation; it omitted entirely the issue of whether Congress achieved its purposes in a reasonable, nonarbitrary way: "Where there are 'plausible reasons' for Congress' action, 'our inquiry is at an end.'"85 For the Beach Court, "plausible reasons" include "any reasonably conceivable state of facts that could provide a rational basis for the [governmental action]."86 The Court continued its discussion of rational basis review by reasserting the longstanding and accepted proposition that under this level of scrutiny, the plaintiff had the burden of demonstrating irrationality.87 To this standard, however, the Court reached back past Fritz and dusted off the rarely invoked proposition that this burden imposed the (impossible) duty upon a plaintiff "to negative every conceivable basis which might support [the legislation]."88 The Court's motioning towards this duty as an entrenched criterion of rational basis teaches us nothing about the proper standard of review under minimum scrutiny but everything about the manner in which the Court continues to stretch this test beyond recognition.

Beach's rational basis review is the flimsiest of tests and affords almost complete deference to the government. The Rehnquist who authored Fritz in 1980 would not have recognized fully the Rehnquist who attached his name to the Beach opinion thirteen years later. What the Beach Court, in essence, arrived at was a test in which the Court examines the ends and then comes up with means to rationalize those ends. No longer does the Court need to concern itself with whether the means to the ends are rational or arbitrary or if the means have some reasonable connection to the ends. As long as there is any conceivable basis upon which to find that the government acted rationally, the Court will uphold the legislation.

Eight justices agreed to this version of rational basis review. Only Justice Stevens expressed discomfort with this version.89 Echoing his Fritz concurrence, Stevens once again indicated that the Court had been too loose in defining the parameters of minimal scrutiny: "Judicial review under the 'conceivable set of facts' test is tantamount to no review at all."90 Justice Stevens was also unwilling to let go of the second prong of rational basis inquiry, indicating that rational basis requires not only that the Court examine whether there was a legitimate purpose to the governmental action but also that the Court analyze whether the action is rationally related to that purpose.91

3. Board of Trustees of the University of Alabama v. Garrett.-At first blush, bringing Garrett into this conversation about rational basis scrutiny may appear odd. After all, the case weighs more heavily on the issues surrounding the Eleventh Amendment and Congress's powers under Section Five of the Fourteenth Amendment than it does on rational basis review. In Garrett, two Alabama state employees brought suit for money damages against the state for violation of Title I of the Americans with Disabilities Act.92 Although the Eleventh Amendment prohibits individuals from suing states in federal court for damages, Section Five of the Fourteenth Amendment permits Congress to "abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and 'act[s] pursuant to a valid grant of constitutional authority.'"93

The majority began its analysis of the case by turning to rational basis review. In Garrett, the Court continued to confound the nature of minimal scrutiny by returning to a more robust version of rational basis review that imposed a more rigorous test than Beach. It appeared, at least in this instance, that the Court had implicitly addressed and accepted Justice Stevens's concerns about shifting the analysis from a dual-prong inquiry to a single inquiry. At the same time, however, the Court ignored Stevens's dismay at the any "conceivable set of facts" standard and instead echoed Beach in granting the government action almost insuperable deference.94

The majority in Garrett reanimated the second prong to the inquiry: the Court noted that governmental action does not run afoul of the Fourteenth Amendment if the action "rationally furthers the purpose identified by the State."95 This is a different, more stringent rendition than the one in Beach, which required only that there be a plausible reason for the governmental action in order for it to be deemed valid.96 At the same time, however, both sides of the deeply divided Court reasserted that the government need not state the actual reasons or purposes motivating its conduct; as long as the Court can conceive of rational reasons or purposes behind the legislature's action, the inquiry is complete and the government has prevailed on one of the elements of minimal scrutiny.

There can be no question that rational basis review is unstable. Notwithstanding the problems attending the distinction between "deferential" rational basis and rational basis review "with a bite," a plaintiff seeking to bring suit against the government for violating his individual liberty has little guidance on how to construct his claims regarding his individual interest versus the governmental interest.

A reconsideration of the basic principles of rational basis review, however, could alleviate these problems. What is not voiced or even considered in any of the Court's cases dealing with minimal scrutiny is that the underlying principle of rational basis review-that government cannot act in an arbitrary manner-is not strong enough to save rational basis review from itself; the test requires additional, solid, bedrock principles. The requirement that the government not act in an arbitrary manner is important and should retain its firm foothold in the foundation of rational basis review. But, from Lindsley at the beginning of the twentieth century through Garrett at the start of the twenty-first, it has been unquestionably and perhaps unconsciously assumed that nonarbitrariness should be the only underlying principle. This Note argues that it is precisely the lack of additional bedrock principles that has rendered rational basis such a wobbly test. Including the principle of equivalence would be enormously helpful to steadying the course of minimal scrutiny. The groundwork for framing such a principle has already been laid by Justice Blackmun in his dissent in Employment Division v. Smith.

II. Groundwork for a New Approach to Rational Basis Review: Employment Division v. Smith97

Smith involved a Free Exercise challenge by two members of the Native American Church who were fired from their jobs and subsequently denied unemployment benefits because their discharge for ingesting sacramental peyote was deemed to be for "work-related misconduct."98 As author of the majority opinion, Justice Scalia rejected the respondents' claim that "requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires)" is an impermissible violation of the Free Exercise Clause.99 Scalia rejected this argument, in part, because he concluded that "more than a century of our free exercise jurisprudence contradicts that proposition."100 Rather, Scalia declared, the Court's Free Exercise cases held that the "government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'"101 In so stating, the majority expressly denied that all claims of religious exemption must be examined under the balancing test of Sherbert v. Verner102 and concluded instead that Sherberi and its progeny only applied to the denial of unemployment benefits.103

The balancing test in Sherbert is essentially a strict scrutiny test.104 In refusing to recognize the broader application of Sherbert, the Court indicated its unwillingness to apply a heightened standard of review to generally applicable, neutral laws that burden religion:

Precisely because 'we are a cosmopolitan nation made up of people of almost every conceivable religious preference,' and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.105

Along with Justice O'Connor's concurrence, Justice Blackmun's dissent, joined by Justices Brennan and Marshall, argued that the Court had radically misinterpreted Free Exercise jurisprudence.106 The four Justices claimed that until the majority's decision, it had been "a settled and inviolate principle of this Court's First Amendment jurisprudence"107 that Free Exercise analysis demands that the government action be "justified by a compelling interest that cannot be served by less restrictive means."108 Although Blackmun's claims about Court precedent are important and exemplify the Court's internal disagreements about whether and when to apply heightened scrutiny review, more interesting and significant to the present discussion is his call for balance in the judicial construction of the individual and state interests.109

As a prelude to his own analysis of Smith, Blackmun set out the parameters of Free Exercise analysis:

[I]t is important to articulate in precise terms the state interest involved. It is not the State's broad interest in fighting the critical "war on drugs" that must be weighed against respondents' claim, but the State's narrow interest in refusing to make an exception for the religious, ceremonial use of peyote. Failure to reduce the competing interests to the same plane of generality tends to distort the weighing process in the State's favor.110

As Blackmun observed, if the state is allowed to articulate its interest at the broadest level of abstraction, it will be nearly impossible to find its interest in enacting a particular law anything but compelling. The only legitimate way to achieve a fair balance of interests when weighing the interests of the individual versus the state in a Free Exercise analysis, Blackmun suggested, is to construe the competing claims at the same level of generality. Therefore, Oregon's interest could not be its "broad interest in fighting the critical 'war on drugs' . . . but [must be its] narrow interest in refusing to make an exception for the religious, ceremonial use of peyote."111

One of the means by which judges can ensure that the state's interest and an individual's interest are equitably construed is to inquire whether the government's interest is "merely abstract or symbolic."112 In Smith, Blackmun found Oregon's interest in a rigid application of its drug laws and in fighting the "war on drugs" symbolic because Oregon had never enforced its ban on illegal substances against religious users of peyote, including against respondents.113 Although not addressed by Blackmun, it is moreover true that lack of enforcement may encompass not only an unwillingness to enforce, as in Oregon's case, but also an inability to enforce the challenged law. Lack of enforcement, however, is but one way in which a government's purported interest may be symbolic and thus not compelling. An interest may also be symbolic if an official-elected or appointed-passes a measure primarily to gain political capital in pursuance of her own self-interest.114 Yet another symbolic situation, suggested by Blackmun's dissent, is when the State's interest is predicated on "mere speculation about potential harms."115

In his Smith dissent, Justice Blackmun concluded that Oregon's interests were not compelling vis-?-vis the respondents' interests, in part because "the values and interests of those seeking a religious exemption in this case are congruent, to a great degree, with those the State seeks to promote through its drug laws."116 As evidence of this congruence, Blackmun examined a wealth of information on the use of peyote in the Native American Church and noted that the Church not only forbade the ingestion of peyote outside of the special, regulated rituals that rely on the use of peyote, but that the use of peyote for religious purposes had been beneficial in combating alcoholism and alcohol usage.117 For Blackmun, congruence between the state and the individual occurs when the interest for which the individual seeks recognition is based on the same or similar fundamental values as those underlying a constitutionally permissible law. Where there is congruence between the individual's interest and the State's interest, there is no conflict between the interests; thus, there is no justification for the law, and the law must be struck down.

Although Blackmun urged a balancing of governmental and individual interests within the context of Free Exercise claims under the strict scrutiny standard of review, there is nothing in Blackmun's description of this balancing test that precludes its application to rational basis review. Indeed, as one commentator pointed out:

The purpose of almost any law can be traced back down to one or another of the fundamental concerns of government: public health and safety, public peace and order, defense, revenue. To measure an individual interest directly against one of these rarified values inevitably makes the individual interest appear the less significant.118

Similarly, another commentator noted:

When it comes to weighing or valuing claims or demands with respect to other claims or demands, we must be careful to compare them on the same plane . . . . [Otherwise] we may decide the question in advance of our very way of putting it . . . . If we think of [one interest] in terms of a policy we must think of the other in the same terms. . . . If the one is thought of as a right and the other as a policy . . . our way of stating the question may leave nothing to decide.119

We are not limited to adopting Blackmun's test only within the narrow parameters of Free Exercise Clause cases. If almost every law can be traced back to a "rarified value," then the inquiry into the state's interest versus the individual's requires that the construction of each interest always be at an equal level of generality or specificity.

The major differences between rational basis review and strict scrutiny lie in whether the government's interest in enacting the measure at issue must be compelling or merely reasonable and whether the government measure must be narrowly tailored to further a compelling interest or need not be so restricted. There is no sound reason why these differences would not be preserved by adapting Blackmun's version of Sherbert's balancing test to rational basis review. The value of applying Blackmun's guidelines to all substantive due process and equal protection cases, irrespective of which tier of scrutiny is applicable, would be in the importation of the necessary coherence lacking in this arena of constitutional cases. It would also ensure that cases will not be decided in favor of one party's interests over another's before the merits of the case can even be considered.

III. A Sounder, More Congruent Rational Basis

Positing that the sole principle underlying rational basis review is that government may not act in an arbitrary manner has generated, as indicated above, more problems than solutions regarding the issue of potential legislative oppression. Once we apply the general principle of equivalency underlying Blackmun's dissent in Smith, however, we arrive at a more cogent version of the rational basis test. The first element of the test that must be revised according to the equivalency principle is the construction of the individual's and the government's interests. Determining the interests at stake in the case is a necessary step in any equal protection or substantive due process case.120 The court's identification of the interests takes on an especially important hue in the latter type of cases. How a court evaluates an individual's liberty interests will determine whether the court subsequently applies heightened, intermediate, or minimal scrutiny. It is thus important for the courts to first evaluate the individual's liberty interest at issue in the case.

Once the court has concluded that the individual liberty interest at stake requires a minimal scrutiny review, it must then characterize the governmental interest at stake. Under Blackmun's proposed revision to this process, courts must construe the governmental interest according to a principle of equivalency.121 That principle requires that the government's interest be defined on the same level of generality as the individual's. No longer can an individual's interest in, say, having access to stronger pain relievers without a prescription be compared with a governmental interest in protecting the health of its citizens, or even in its regulating drugs in general. Such a specific rendering of the individual's interest requires a narrower construction of the state's interest, for example, its interest in preventing such access.

Forging a congruence between the two competing interests, Blackmun suggested, may be achieved, in part, by examining whether the legislative interest is abstract or symbolic.122 This analysis of the state's interest is particularly important in the second step of the new rational basis test. After the individual and governmental interests have been construed on the same plane of generality, an equivalency principle next demands that a court cannot, even in some cases, rely on the single-prong inquiry. Courts must engage in, at least, the dual-prong inquiry that often appears in rational basis review and that was posed by Justice Brennan in his Fritz dissent and the majority opinion in Garrett. That is, a court must inquire whether the purpose motivating the governmental action is legitimate and, if so, whether the governmental action is rationally related to the identified purpose. It is especially important that the answer to the first question not interfere with the issue of whether there is a rational connection between interest and action taken. They are distinct and separate inquiries; an affirmative answer to the first question in no way guarantees or compels an affirmative response to the second.

Courts must pose the second inquiry because searching solely for legitimate reasons does not speak to whether the government action is actually related to those reasons. If the government action is not related to the purposes ostensibly motivating such action, then it is highly probable that the legislative interest is merely abstract or symbolic. An abstract or symbolic law runs up against the first animating principle of rational basis review: Government action must not be arbitrary. A law that is followed by a lack of enforcement, that is motivated purely by political self-interest, or that is predicated on legislative guessing games about possible harms, can hardly be interpreted as anything but arbitrary-it does not serve the announced policy goal but is a subterfuge for a wholly distinct and independent goal. A governmental body can always concoct plausible reasons for any of its actions, and if the inquiry stops there, the important determination about this particular action will always go unheard. The result moves beyond the mere observance of the separation of powers to a system where checks and balances no longer exist. When we do not ask if a government's actions are rationally related to its objectives, then we have a test that promises almost absolute deference to the government, regardless of its actions.

To further guard against the passage of abstract or symbolic laws, courts must inquire, to the best of their abilities, into actual reasons-rather than "any conceivable reason"-for the government action at issue. Although to some this may sound like a move towards heightened tiers of scrutiny or a call for judicial activism that rides roughshod over the other branches of government, it actually is in line with general judicial principles, particularly procedural principles. Courts are usually faithful to the principle that a party is the master of its own complaint or response; the courts will not interfere and raise issues not presented by a party to assist that party in its case. As Robert C. Farrell points out, "The judicial practice of hypothesizing conceivable purposes conflicts with the ordinary practice under Rule 12(b)(6) of the Federal Rules of Civil Procedure under which '[a] motion to dismiss for failure to state a claim . . . is to be evaluated only on the pleadings.'"123 If, for instance, a defendant fails to raise the issue of the forum's exercise of personal jurisdiction over him, a court may not step into the void of the defendant's silence to raise and consider the issue of its own territorial jurisdiction.124 What, then, is so special about rational basis review that makes courts willing to abandon their "take the parties as you find them" approach?

A primary concern surrounding the "actual purpose" standard is that we cannot know the actual purposes behind an action because human beings and governmental bodies are complex psychological creatures.125 This is, of course, true. But the truth of that statement need not bother constitutional lawyers or scholars since the law already accounts for these complexities and says that we accept the parties' pleadings as they are presented. If the pleading proffers a reason-even if that is not the "actual reason"-the court has something to evaluate rather than having to shift the burden from a party's plea to the bench's intellectual prowess. Such a requirement would also prevent the government or the courts from formulating symbolic or abstract purposes. When courts apply the equivalency principle, the requirement that a court consider actual legislative reasons rather than merely hypothesized purposes assures that cases in which a plaintiff argues that the government entertained impermissible purposes will make it past 12(b)(6) motions.126 Justice Stevens's valid observation that the "any conceivable reason" review is no review at all would be obviated by a review that, grounded in a principle of equivalence, looks to actual legislative purposes and considers whether the action is actually a related and legitimate means of accomplishing these purposes.

IV. The "New" Rational basis review and Doe v. City of Lafayette

A. Doe v. City of Lafayette

In the summer of 2004, the Seventh Circuit held that an order issued by the Lafayette Parks and Recreation Department indefinitely banning a former sex offender, John Doe, from entering all public parks was constitutionally permissible.127 The en banc majority concluded, in part, that Mr. Doe's rights under the Due Process Clause of the Fourteenth Amendment were not violated because the City's actions were rational and legitimately served its purpose of protecting the City's children.128

A resident of Lafayette, Indiana, John Doe had a long history of sexual offenses, mostly involving minors, dating back to 1978.129 In 2000, Doe was driving home from work when he decided to visit a city park. At the park, he saw five adolescents playing.130 Doe watched the children for fifteen to thirty minutes and entertained thoughts about exposing himself or initiating some other sexual contact with them before the fear of reoffending caused Doe to exit the park and return home.131 Distressed about the incident, Doe relayed the events to his addictions counselor and to his sex offenders group.132 Shortly afterwards, an anonymous tipster called Doe's former probation officer and informed him of Doe's visit to the park.133 Subsequently, at the request of the Lafayette Chief of Police, the Lafayette Parks and Recreation Department issued the ban that permanently prohibits Doe from entering public park property.134

Doe sued the City in federal district court, arguing that the order violated his First Amendment rights "by punishing him for mere inappropriate thoughts and [violated] his substantive due process rights to enter the Lafayette city parks."135 Although noting that the case was one of first impression, the district court granted the City's motion for summary judgment.136 The district court disagreed that Doe's First Amendment guarantees had been violated.137 The court similarly held that Doe's due process rights had not been violated.138 After concluding that the liberty interest at stake was not fundamental and thus did not initiate a heightened standard of review, the court held that Lafayette's order was rationally related to the City's legitimate interest in securing the safety of its children.139

A divided Seventh Circuit panel reversed the Indiana district court and held that the ban violated Doe's First Amendment rights.140 In her majority opinion, Judge Williams concluded that although she found the content of Doe's thoughts "deplorable" and "repugnant," the City of Lafayette was prohibited from punishing Doe merely for his thoughts: "without protection from government intrusion into our thoughts, the freedoms guaranteed by the First Amendment would be meaningless."141 Williams held that the City's interest in protecting children did not justify the violation of "protected thinking."142

The en banc majority opinion-penned by Judge Ripple, the dissenter to the panel's opinion-reversed the panel's decision and affirmed the summary judgment for the City.143 The opinion first considered Doe's First Amendment claims. The court came to two conclusions in holding that the City of Lafayette had not violated Doe's rights under the First Amendment. First, the court noted that Supreme Court precedents had not given protection to "non-expressive conduct" under the free speech doctrine.144 The majority found that Doe's actions at the park did not demonstrate expressiveness, and it thus held that "because there is no expression at issue, First Amendment doctrine simply has no application here."145 The court then turned to Doe's claim that he was unconstitutionally being punished for his private thoughts and acknowledged the principle that government cannot punish individuals for pure thought.146 The majority noted, however, that the Supreme Court had not extended free speech protections in the realm of thought plus conduct: "[R]egulations aimed at conduct which have only an incidental effect on thought do not violate the First Amendment's freedom of mind mandate."147 Finding that the City's ban arose in response to more than Doe's mere thoughts, the Seventh Circuit held that "[t]he First Amendment does not prohibit the City from taking the action it did to protect its children."148

After holding that the City had not violated Doe's free speech rights, the court turned to Doe's due process claims.149 The majority concluded that the City's ban did not implicate a fundamental liberty interest of Doe's and thus applied rational basis review.150 Under the Seventh Circuit's application of the test, the inquiry was "whether the ban is 'rationally related to a legitimate government interest, or alternatively phrased,' whether the ban is 'arbitrary' or 'irrational.'"151 The court concluded that the ban was rational on two bases: precedent indicated that the City's interest in protecting the well-being of children is not only legitimate but compelling; and the facts of the case, when combined with the susceptibility of children to abuse in parks, renders it "hard to see how the City's ban is anything but rational."152 The majority even went so far as to suggest that had it been bound to review the case under strict scrutiny, it still would have upheld the City's actions.153

The dissent, written by Judge Williams, the author of the panel's majority opinion, strongly criticized the majority's First Amendment analysis. Judge Williams held that the majority had improperly allowed, contrary to First Amendment jurisprudence, a government to exert control over an individual's thoughts and to punish the individual for the content of those thoughts.154 As for Doe's substantive due process claim, the dissent determined it unnecessary to consider that issue, given that it would reverse the district court's decision on the basis of the First Amendment violation.155

B. Examining Doe Under the New Rational Basis Review

Because the Seventh Circuit determined that Doe's interest in entering municipal parks was not a fundamental interest, the case was subject to rational basis review. Under the new minimal scrutiny test, the first issue that must be analyzed is the construction of the governmental interest. While the en banc opinion described Doe's liberty interest as "a right to enter public parks simply to wander and loiter innocently," it characterized the City of Lafayette's interest as an "interest in protecting its youth."156 As the Seventh Circuit noted, even Doe had to concede that such a municipal interest easily met the requirement of legitimacy; in fact, the court continued, such an interest would meet the "compelling state interest" test of strict scrutiny.157 The court's construal of the City's interest, however, violates the equivalency principle. What individual liberty interest could ever withstand being held up against a governmental interest in protecting youth? To level out the playing field, the City's interest must be reconfigured to match the specificity level of Doe's liberty interest. Since Doe's interest was identified as the right to wander through parks, the City's interest has to be characterized more narrowly, within the parameters of its interests in not allowing Doe to wander through municipal parks. Such an interest may be defined as an interest in protecting children playing in the parks from Doe, a convicted child molester. Brought down to this lower level of abstraction, it would be difficult to conclude that such an interest would not be rational.

Under the next step in the new rational basis review, the court would examine whether the City's ban is rationally related to this stated purpose. It is entirely possible that a court could find from the record that the ban order was symbolic or abstract. The City, like the court, had testimony from Doe's doctor that convicted sexual offenders were never entirely free of the risk of reoffending. But Doe's doctor had also testified that Doe had been taking medicine to stymie his urges and that she thought it highly unlikely that Doe would reoffend, particularly in light of the fact that he stopped himself from initiating sexual contact with the children in the park during the evening that gave rise to this case.158 If the pleadings and the record indicated that the City of Lafayette engaged merely in speculation about potential harms, then the ban order is not rationally related to the City's purpose; it would indeed be symbolic and thus would fail to uphold the principle of equivalency.

On the other hand, if the pleadings and record demonstrated that the speculation of potential harms was anything but "mere" and was instead grounded in valid evidence and reasoning, a court would next analyze whether banning a single individual from entering parks for action committed while in a park was rational. Given the narrow tailoring of this ban and its specificity to the events that gave rise to the ban, it would be hard, as the Seventh Circuit observed, to see how the ban was not rationally related to the purpose of protecting children in the park from Doe.159

This offering of two potential outcomes is not meant to indicate that the equivalency principle creates a rational basis review that is facially different but substantively similar to the old test. The new test is not dependent on who hears the case. Rather, determining the outcome of the Doe case under a rational basis review undergirded by the principle that government cannot be arbitrary and by the equivalency principle requires access to documents (i.e., the pleadings and record) not available during the writing of this Note. As I hope to have nevertheless demonstrated, however, the decision in the Doe case would appear a lot less arbitrary had the Seventh Circuit applied this Note's rational basis test.

V. Conclusion

Although this Note argues that rational basis review is flawed and needs rescue, it would be inappropriate and false to suggest that these problems are new or (post) modern concerns. Indeed, footnote four to Carolene Products exists because the Justices in 1938 foresaw the fundamental problems that could arise if a wholly deferential attitude towards all government action were to prevail, and they felt it was the role of the Court to curb governmental oppression. Rational basis review is an enduring problem in our jurisprudence precisely because it stems directly from and highlights the fundamental concern the Court has grappled with since Marbury v. Madison: What is the role of courts in a constitutional democracy? What is the role and function of courts in relation to the role and function of the other two branches of government?

This Note, for obvious reasons, must only deal with the trees-the forest exceeds its scope. But for now, it is worth observing that all commentaries, criticisms of, and suggestions for revamping judicial review under due process and equal protection-including the criticisms and suggestions within this Note-will not be able to truly devise a workable methodology until and unless the Court and the country can resolve and feel comfort, rather than anxiety, about the role of the courts in U.S. politics and society.

-Neelum J. Wadhwani