Rational Basis Loses Its Bite: Justice Kennedy's Retirement Removes the Most Lethal Quill from LGBT Advocates' Equal-Protection Quiver
27 Pages Posted: 7 Aug 2018
Date Written: July 28, 2018
Justice Kennedy did not just strike down laws that targeted sexual orientation; he did violence to them; by striking them down on rationality review as lacking any legitimate—let alone important or compelling—interest, he wiped out a considerable body of anti-LGBT legislation. This article surveys cases, including LGBT-rights cases, that applied so-called “rational basis with a bite,” or what the article calls “incursive rational-basis review.” Though the Court never deemed LGBT Americans to be politically powerless for purposes of calling them a suspect class, it did repeatedly deem them to be politically unpopular, thereby triggering a potent species of rational-basis review that shifts the burden to the government, requiring it to proffer a legitimate interest after a court has already found the government’s interest to be illegitimate—a nearly impossible burden, indeed. So this level of review, somewhat paradoxically, has been more dangerous for the government than the dreaded “strict scrutiny,” which a court applies to smoke out any improper purpose. A court applies incursive rational-basis review, on the other hand, when it has already found an improper purpose. A new socially conservative majority likely will consider LGBT Americans neither politically powerless nor politically unpopular. So LGBT advocates will have lost the most lethal quill in their quiver, leaving them adrift on a sea of constitutional uncertainty and, for now at least, largely hamstrung in their continuing fight for legal equality.
Keywords: Constitutional Law, LGBT Rights, Rational Basis Review, Standards of Review, Rational Basis with a Bite, Equal Protection, Justice Kennedy
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