Amicus Curiae Brief — Tanco v. Haslam, 135 S. Ct. 1040 (2015) (No. 14-562)

“Supreme Coun, U.s.

Nos. 14-556, 14-562, 14-571, 14-57 MAR 5- 2015

gu The

Supreme Court of the Gnited States

-@

JAMES OBERGEFELL, et al.,

Petitioners,

v.

RICHARD HODGES,

Director, Ohio Department of Health, et al.,

Respondents.

e

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

®

BRIEF OF AMICUS CURIAE INSTITUTE FOR

JUSTICE IN SUPPORT OF PETITIONERS

®

INSTITUTE FOR JUSTICE

WILLIAM H. MELLOR

901 North Glebe Road, Suite 900

Arlington, Virginia 22203

(703) 682-9320

rmcnamara@ij.org

*Counsel of Meant

Counsel for Amicus Curiae

Institute for Justice

COCKLE LEGAL BRIEPS (800) 725-6064

WWW COCKLELEGALBRIEFS.OOM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................ccecseeeceeeeees ii

INTEREST OF AMICUS CURIAE....................2++. 1

SUMMARY OF THE ARGUMENT .......................

STITT hicsisinpisipetitieaieriaeeetitiemdaapenmnemneNinnete 5

I. The Rational-Basis Test Requires An Actual

IN IT sii scsscinnseicestntelsinieiasednedineiidiamenies 8

A. Not Every Purpose Is Legitimate ......... 9

B. Each Line Drawn By The Legislature

Must Have A Legitimate Purpose......... 13

Il. The Existence Of A “Rational Relationship”

nN I ciicsecpelcsichnesicnichcaieiniinsacniiaesdienctinn 15

A. Facts Matter In Rational-Basis Cases... 16

B. The Relevant Inquiry Is Whether A

Law Is Rational When It Is Applied,

Not Whether It Was Rational When-

ever It Happened to Pass...................... 21

AIEEE sesictintncinncetnrennnseienannininmtiainneninnenens 24

i

TABLE OF AUTHORITIES

Page

CASES

Allegheny Pittsburgh Coal Co. v.

Cnty. Comm’n of Webster Cnty.,

ht TEE ae 5,7

Backlund v. Hessen,

104 F.3d 1031 (8th Cir. 1997) ......................0000 11, 15

City of Cleburne v. Cleburne Living Ctr.,

a rine ccceteesemitameibinianieatinail 5, 10

Clayton v. Steinagel,

885 F. Supp. 2d 1212 (D. Utah 2012) ................. 1,12

Cleveland Bd. of Educ. v. LaFleur,

| ea eT 6

Craigmiles v. Giles,

312 F.3d 220 (6th Cir. 2002) ...........00......0..eeee ee 12,17

Dias v. City and Cnty. of Denver,

567 F.3d 1169 (10th Cir. 2009)..................cccsessecceees 22

FCC v. Beach Commce’ns, Inc.,

iis diciarcicerrinnenennenaininansios 17, 18, 19

Granholm vu. Heald,

ES RE een ny ene Sone 23

Heller v. Doe,

I 19, 20

Hooper v. Bernalillo Cnty. Assessor,

a al 5

James v. Strange,

£ SEES n a eane ere 6

il

TABLE OF AUTHORITIES — Continued

Page

Kotch v. Bd. of River Port Pilot Comm’rs

for Port of New Orleans,

ere a aee renee 10, 11

Lindsey v. Normet,

EL a eee a Re 6

Loesel v. City of Frankenmuth,

602 F.3d 462 (Gth Cir. 2012) ...............cc.ccccccccccoceces 17

McCutcheon v. FCC,

I a canmntial 22

Merrifield v. Lockyer,

547 F.3d 978 (9th Cir. 2008) .......................ec000e 12,17

Metro. Life Ins. Co. v. Ward,

ee, Se criictnenenionmenscdasenntio: 6,9, 10, 13, 14

Milnot Co. v. Richardson,

350 F. Supp. 221 (N.D. Til. 1972) .........ccccsccccccecsecess 21

Minnesota v. Clover Leaf Creamery Co.,

ETE ae 19

Plyler v. Doe,

il 6, 14

Powers v. Harris,

S79 F-.34 1306 (IGG Cir. BOOS) ......cccccccccccccccsccccecees 12

Quinn v. Millsap,

SE ae Oe a ae 5, 14

Reed v. Reed,

5 ce anaes 6

Romer v. Evans,

BE ey HE ET ccncctncccesetecsstonssioncasttons 3, 5, 14, 19

iv

TABLE OF AUTHORITIES — Continued

Page

St. Joseph Abbey v. Castille,

712 F.3d 215 (5th Cir. 2013), cert. denied,

ee ty SE ictntncnnssconstcccesenidtantests i AP ®

Santos v. City of Houston,

852 F. Supp. 601 (S.D. Tex. 1994)........................0. 23

Schware v. Bd. of Bar Exam’rs,

EEE DE 5

Seaboard Air Line R.R. Co. v.

City of West Palm Beach,

373 F.2d 328 (Sth Cir. 1967) ............cccccccccsesscesecsees 22

Shelby Cnty. v. Holder,

eae Ea 23

Turner v. Fouche,

al aac 6

United States v. Carolene Prods. Co.,

i sd aclncbcndineantiall 18, 21

United States v. Lopez,

ES a 6

United States v. Morrison,

I aes aecidiclcel 7

U.S. Dep't of Agric. v. Moreno,

I orci rnrcccrinidiiiinntsncdaioonnnnil 6, 10, 15

Weinberger v. Wiesenfeld,

I ill 6, 15,19

TABLE OF AUTHORITIES ~ Continued

Page

Williams v. Vermont,

Pee GE Ak OS Cie crecccectsnisetineemnaamanaeeee 6, 14

Zobel v. Williams,

Aik Ey eee 6, 14, 16, 18

CONSTITUTIONAL PROVISIONS

CEE. Cmnek, GROEN, TEE cccscesccssavvtinttcnintentaniaaiaae passim

RULES

Supreme Court Rule 37.3(a)..................cccceeceeeeseeeeeeeeees 1

OTHER PUBLICATIONS

Cass Sunstein, Naked Preferences and the Con-

stitution, 84 Colum. L. Rev. 1689 (1984)............ 9, 10

1

INTEREST OF AMICUS CURIAE'

The Institute for Justice is a nonprofit law firm

dedicated to the defense of free speech, school choice,

economic liberty, and private property rights nation-

wide. Because the last two of these — the right to pur-

sue a common occupation and the right to keep one’s

property — invoke rights that this Court has some-

times called “non-fundamental,” the Institute frequently

litigates in federal court under the rational-basis test.

Under the vision of the rational-basis test artic-

ulated by the Sixth Circuit below, the Institute

would lose all of these cases — as, indeed, would every

rational-basis plaintiff. But the Institute regularly

wins rational-basis cases. See, e.g., St. Joseph Abbey

v. Castille, 712 F.3d 215 (5th Cir. 2013), cert. denied,

134 S.Ct. 423 (2013); Clayton v. Steinagel, 885

F. Supp. 2d 1212 (D. Utah 2012). The Institute is not

alone in this — other plaintiffs also win rational-basis

cases at every level, including before this Court.

Under the Sixth Circuit's articulation of the rational-

basis test in this case, however, that would be impos-

sible. The court below described a test so thoroughly

deferential and deliberately divorced from facts that

no plaintiff could hope to prevail. Since plaintiffs do

manage to prevail under the rational-basis test, the

* Pursuant to this Court’s Rule 37.3(a), all parties have con-

sented to the filing of this amicus brief. No portion of this brief

was authored by counsel for any party, and no person or entity

other than amicus and its counsel made a monetary contribution

to the preparation or submission of this brief.

2

description of the test in the opinion below must be

wrong. And so it is.

The Institute’s interest in this case is straight-

forward: The Sixth Circuit’s articulation of the rational-

basis test below introduces serious doctrinal errors

that cannot be squared with this Court’s precedent.

Those errors, if adopted by this Court, would upend

the rational-basis test as it is actually applied by

the federal judiciary, with serious consequences

for the Institute’s clients as well as for the consti-

tutional rights of all Americans. For that reason,

the Institute submits this brief to explain how the

Sixth Circuit’s opinion departs from the ordinary

practice of this Court and the courts of appeals and to

urge this Court — regardless of its ultimate decision

on the merits — not to incorporate these errors into

its Fourteenth Amendment analysis.

¢

SUMMARY OF THE ARGUMENT

In its decision below, the Sixth Circuit held that

the plaintiffs’ claims in this case were all governed

by the rational-basis test. Pet. App. 3la-39a.’ In

applying that test, though, the Sixth Circuit articu-

lated an erroneous version of rational-basis review

under which the government must always win: a ver-

sion under which basically any government end is

* “Pet. App.” refers to the joint appendix filed in cases 14-

556, 14-562, and 14-574.

3

legitimate, and one where facts can never be taken

into account to question whether there is a “rational

relationship” to the government’s end. If, as the panel

below seemed to conclude, the only limit on govern-

ment power under the rational-basis test is the limit

of the human imagination, then the many constitu-

tional protections subject to rational-basis review are

meaningless.

The panel’s account of the rational-basis test is

wrong. It does not describe the rational-basis test as

it is actually applied by this Court, and it does not

describe the rational-basis test as it is actually ap-

plied by lower courts.

As traditionally formulated, the rational-basis

test has two parts, each of which imposes a meaning-

ful constraint on government action: There must be a

“legitimate end,” and a challenged law or classifica-

tion must have a “rational relationship” to that end.°

The Sixth Circuit’s analysis introduces errors into

both prongs of the test.

First, the Sixth Circuit’s description of the “legit-

imate interest” prong is so expansive as to mean that

literally anything the government may wish to do is

legitimate. The panel concluded, for example, that the

government may assert a legitimate interest in pro-

moting raw nepotism that benefits not the public, but

* E.g., Romer v. Evans, 517 U.S. 620, 631 (1996) (noting

that Equal Protection requires classification to “bear[ ] a rational

relation to some legitimate end”).

4

only connected insiders with the clout to secure val-

uable positions. This is not so: In this Court’s appli-

cation of the rational-basis test, it has made clear

that some government interests are legitimate while

others are not, and, where the government’s interests

are illegitimate, the challenged law fails.

Second, the Sixth Circuit suggests that the ex-

istence of a “rational relationship” must be deter-

mined in a factual vacuum. The panel, for example,

deemed the trial in the Michigan case an elaborate ir-

relevance because rational-basis analysis takes place

not in a courtroom but within the imagination, based

solely on rational speculation. This, too, is not so:

This Court has regularly examined the factual cir-

cumstances in which a law is being enforced to eval-

uate a law’s rationality. To be sure, this Court’s

rational-basis analysis is deferential, but it defers to

reasonable policy judgments not to provably false

facts.

Simply put, the Sixth Circuit has articulated a

version of the rational-basis test under which it is

impossible for any plaintiff to win any rational-basis

case. That is not the test articulated by this Court,

and (excepting the opinion below) that is not the test

actually applied by the courts of appeals. Thus, if this

Court resolves this case under rational-basis review,

it should do so under the actual rational-basis test,

not the incorrect version set forth by the Sixth Circuit

below.

5

ARGUMENT

In its opinion below, the Sixth Circuit outlined a

vision of rational-basis review that is no review at all.

According to the opinion below, the words “judicial

restraint,” together with respect for the “democratic

process,” allegedly “tell us all we need to know” about

rational-basis review. Pet. App. 3la (internal quota-

tion marks omitted).

If these two things told us all we needed to know

in this case, though, they would tell us all we need to

know in every case — namely, that the government

always wins. But the Sixth Circuit’s cramped view of

the rational basis test is not the law. It was never the

law, even at the height of the post-New Deal embrace

of judicial deference. See, e.g., Schware v. Bd. of Bar

Exam’rs, 353 U.S. 232, 249 (1957) (Frankfurter, J.,

concurring) (exclusion of former communist from

legal profession violates due process because it “of-

fends the dictates of reason”). It certainly is not the

law today. To the contrary, this Court often looks for

rationality and finds it lacking.*

* See, e.g., Romer v. Evans, 517 U.S. 620, 632 (1996) (law

concerning enactment of anti-discrimination measures fails ra-

tional basis scrutiny); Quinn v. Millsap, 491 U.S. 95, 107 (1989)

(law limiting membership on governing board to property owners

fails rational basis scrutiny); Allegheny Pittsburgh Coal Co. v.

Cnty. Comm’n of Webster Cnty., 488 U.S. 336, 343-44 (1989) (tax

assessment scheme fails rational basis scrutiny); City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985) (per-

mit requirement for group home for mentally retarded fails ra-

tional basis scrutiny); Hooper v. Bernalillo Cnty. Assessor, 472

(Continued on following page)

6

Adopting the lower court’s view of the rational-

basis test as one where anything goes and plaintiffs

always lose would have serious consequences that

resonate far beyond this case. Every area of activity

deemed “non-fundamental” by this Court is subject

to rational-basis review: The right of the monks of

U.S. 612, 621-22 (1985) (law withholding tax exemption from

new residents fails rational basis scrutiny); Williams v. Vermont,

472 U.S. 14, 23-24 (1985) (residency requirement for tax exemp-

tion fails rational basis scrutiny); Metro. Life Ins. Co. v. Ward,

470 U.S. 869, 875, 876 (1985) (discriminatory taxation of do-

mestic and foreign corporations fails rational basis scrutiny);

Plyler v. Doe, 457 U.S. 202, 220 (1982) (law barring undocu-

mented children from public education fails rational basis

scrutiny); Zobel v. Williams, 457 U.S. 55, 65 (1982) daw linking

size of state benefit to duration of residency fails rational basis

scrutiny); Weinberger v. Wiesenfeld, 420 U.S. 636, 651 (1975)

(discrimination between widows and widowers in payment of

Social Security benefits fails rational basis scrutiny); Cleveland

Bd. of Educ. v. LaFleur, 414 U.S. 632, 647 (1974) (mandatory

leave for pregnant employees fails rational basis scrutiny); U.S.

Dep't of Agric. v. Moreno, 413 U.S. 528, 538 (1973) (law with-

holding Food Stamp benefits from households consisting of un-

related persons fails rational basis scrutiny); James v. Strange,

407 U.S. 128, 140 (1972) (law allowing state to recoup cost of

criminal defense from indigent defendant fails rational basis

scrutiny); Lindsey v. Normet, 405 U.S. 56, 78 (1972) (bond re-

quirement to appeal class of landlord-tenant disputes fails ra-

tional basis scrutiny); Reed v. Reed, 404 U.S. 71, 76 (1971) (law

granting preference to males when appointing administrators of

estates fails rational basis scrutiny); Turner v. Fouche, 396 U.S.

346, 364 (1970) (law limiting membership on governing board to

property owners fails rational basis scrutiny); see also United

States v. Lopez, 514 U.S. 549, 564 (1995) (rejecting contention

that “Congress could rationally have concluded that [possession

of guns in school zones) substantially affects interstate com-

merce”).

7

St. Joseph Abbey to sell caskets is governed by the

rational-basis test. St. Joseph Abbey v. Castille, 712

F.3d 215, 221 (5th Cir. 2013). The right to be free

from arbitrary taxation is governed by the rational-

basis test. Allegheny Pittsburgh Coal Co. v. Cnty.

Comm’n of Webster Cnty., 488 U.S. 336, 343-44 (1989).

Limitations on federal power are analyzed under the

rational-basis test. Cf. United States v. Morrison, 529

U.S. 598, 608 n.3 (2000) (rejecting dissent’s “remark-

able theory that the commerce power is without

judicially enforceable boundaries”). If the rational-

basis test is the toothless fiction described by the

majority below, all of these areas of constitutional law

— and more — will be relegated to the unfettered

discretion of legislators nationwide.

Fortunately, the rational-basis test is not a tooth-

less fiction. As noted above, this Court has repeatedly

found rationality lacking. And it has done so because,

straightforwardly enough, the rational-basis test means

what it says. Government action must be supported

by a legitimate interest — which means this Court dis-

tinguishes between legitimate and illegitimate ends

of government. And there must actually be a rational

relationship between the government’s action and

some identifiable legitimate end — which requires an

inquiry into the factual circumstances surround-

ing the government’s action. To be sure, the govern-

ment does not have an affirmative burden under the

rational-basis test and it may invoke rational spec-

ulation to justify a challenged law, but a plaintiff

may carry its burden of refuting a law’s asserted

8

justifications by adducing evidence demonstrating

that the government’s speculation is false.

Il The Rational-Basis Test Requires An Actual

Legitimate Interest.

According to the Sixth Circuit, under the rational

basis test, “[slo long as judges can conceive of some

‘plausible’ reason for the law ... the law must stand,

no matter how unfair, unjust, or unwise the judges

may consider it as citizens.” Pet. App. 3la. Indeed,

“any plausible reason” will supposedly suffice: The

Sixth Circuit gleans from this Court’s precedent the

notion that even “nepotism” without any connection

to the public good would satisfy rational-basis scru-

tiny. Jd. at 38a-39a.

If, as the Sixth Circuit concluded, shameless

nepotism is a legitimate government interest, then

every purpose is a legitimate government interest —

including literally any conceivable purpose for grant-

ing the benefits of marriage to some couples but not

others. Not so. This Court’s precedents (including the

cases relied on by the majority below) make clear that

some purposes are legitimate while others are illegit-

imate. And they also make clear that every distinction

drawn by a government actor must rationally relate

to a legitimate purpose. Although these seem like

elementary propositions, they eluded the Sixth Cir-

cuit, and this Court should not repeat the lower

court’s errors in its analysis.

9

A. Not Every Purpose Is Legitimate.

The Sixth Circuit was simply wrong to announce

that “any plausible reason” for a law — including even

pure nepotism — will pass muster under the rational-

basis test. Pet. App. 38a. It is, of course, true that a

law must have a plausible explanation; this Court

regularly rejects laws because it finds the govern-

ment’s explanations implausible. See infra 16-20. But

not just any plausible reason will do. Instead, this

Court’s precedents make clear that the government

must have a “legitimate state purpose” for its law.

Ward, 470 U.S. at 876 (emphasis added).

This Court has long recognized that a mere

preference for one group over another is not a le-

gitimate government purpose. See Cass Sunstein,

Naked Preferences and the Constitution, 84 Colum. L.

Rev. 1689 (1984) (collecting cases). In Ward, for

instance, a State taxed out-of-state insurance com-

panies at a higher rate than domestic companies.

470 U.S. at 871-72. That policy was not insane:

Indeed, it was quite rational insofar as any “State’s

natural inclination frequently would be to prefer

domestic business over foreign.” Jd. at 882. But the

Court held that the State’s preference for domestic

business — however understandable — was not legiti-

mate. Jd. at 882 & n.10.° Because the ‘ery “function”

* Indeed, this Court deemed the illegitimacy of naked eco-

nomic protectionism so obvious that rational-basis review under

the Equal Protection Clause — rather than a Commerce Clause

(Continued on following page)

10

of the rational-basis test is “to ensure that classifica-

tions rest on something other than a naked prefer-

ence for one person or group,” Sunstein, supra, at

1713, the existence of such a preference cannot be

accepted as a legitimate purpose.°

The Sixth Circuit’s suggestion that a law driven

by “nepotism” could pass constitutional muster, Pet.

App. 38a, flies in the face of this precedent. Nepotism,

after all, is nothing more than a bare preference for a

group.

The Sixth Circuit derives its nepotism analysis

from this Court’s decision in Kotch v. Bd. of River Port

Pilot Comm’rs for Port of New Orleans, 330 U.S. 552

(1947). But Kotch does not endorse government-

sanctioned nepotism. Rather, as the Eighth Circuit

has explained:

Kotch proceeds from the assumption that a

general associational preference for relatives,

and a desire tv help them, while quite under-

standable and thus rational in some sense, is

not a reason for hiring someone that can

withstand an equal protection objection. If it

were sufficient, or even of legal relevance, we

analysis — was sufficient to resolve the claim at issue. Jd. at 880-

81.

* See also, e.g., Cleburne, 473 U.S. at 450 (striking down

law that rested on “prejudice against the mentally retarded”);

Moreno, 413 U.S. at 534 (striking down law that was “intended

to prevent so-called ‘hippies’ and ‘hippie communes’ from par-

ticipating in the food stamp program”).

11

are confident that the Court would have

said so.

Backlund v. Hessen, 104 F.3d 1031, 1033 (8th Cir.

1997) (emphasis added).’ The only reason the Court

in Kotch considered evidence that the challenged law

tended to promote nepotism is that nepotism is not

a legitimate interest, and therefore that evidence

was harmful to the government’s case. See 330 U.S.

at 555-56. The Court ultimately upheld the law

because of other, more persuasive evidence showing

that the apprenticeship requirement served a differ-

ent legitimate purpose — namely, to ensure the “safest

and most efficiently operated pilotage system practi-

cable.” Id. at 564.

The contrary rule advanced below — embracing

any “plausible” government purpose as legitimate —

would have drastic implications well beyond this

case. For example, several courts of appeals have rec-

ognized that the general rule against sheer favoritism

in legislation means that states may not legitimately

pass laws that serve no purpose beyond protecting in-

dustry incumbents from economic competition: When

a group of monks in Louisiana sued to challenge a

ban on retailing caskets, for instance, the Fifth Cir-

cuit rejected the suggestion that the law could be

" The Eighth Circuit in Backlund held that an individual

who applied to work as a firefighter stated an equal protection

claim, where he alleged that the fire department “hired four fire-

fighters, three of whom were related to either present or former

Fire Department employees.” 104 F.3d at 1032.

12

justified on the ground that it served to protect the

funeral home industry from economic competition.

St. Joseph Abbey v. Castille, 712 F.3d 215, 221-22

(5th Cir. 2013). According to that court: “[Nleither

precedent nor broader principles suggest that mere

economic protection of a particular industry is a le-

gitimate governmental purpose.” Jd. at 222; see also

Merrifield v. Lockyer, 547 F.3d 978, 991 (9th Cir.

2008) (similar)."

Indeed, it seems doubtful that even the Sixth Cir-

cuit believes its own expansive rhetoric. In another

case, also involving the casket industry, the Sixth

Circuit held that “protecting a discrete interest group

from economic competition is not a legitimate govern-

mental purpose.” Craigmiles v. Giles, 312 F.3d 220,

224 (6th Cir. 2002). But, sincere or not, the sweeping

rhetoric in the opinion below could have significant

consequences for future rational-basis cases. The ver-

sion of the rational-basis test adopted by the Sixth

Circuit in this case is untenable and — even more

importantly — cannot be reconciled with the binding

precedent of this Court. It should therefore be re-

jected.

* Only one court of appeals has disagreed with this consen-

sus (and even then only in dicta). Powers v. Harris, 379 F.3d

1208, 1221 (10th Cir. 2004). But even in the Tenth Circuit, fed-

eral] courts strike down laws that cannot rationally be thought to

accomplish anything but enriching one group at the expense of

another. See Clayton v. Steinagel, 885 F. Supp. 2d 1212 (D. Utah

2012).

13

B. Each Line Drawn By The Legislature

Must Have A Legitimate Purpose.

The Sixth Circuit is equally wrong to suggest

that — so long as a law rationally advances some pos-

itive end — courts cannot question whether the legis-

lature has “done too much or too little.” Pet. App. 33a.

In fact, that question of “fit” is precisely the focus of

the rational-basis test in Equal Protection cases.

The Sixth Circuit’s articulation of the rational-

basis test would render Equal Protection analysis

absurd: The entire point of an equal-protection chal-

lenge is that one group of people is being treated

better than another. It is literally always the case

that a classification accomplishes something positive

because it is always true that a classification makes

some people (the favored class) better off. No Equal

Protection plaintiff can dispute the existence of some

positive benefit flowing from a law they challenge;

they can only argue that there is no good reason to

exclude them from these positive benefits. According

to the opinion below, these plaintiffs would simply

always lose. But rational-basis plaintiffs do not

always lose because the rational-basis test described

below is not the law. See supra at 5-6 n.4 (collecting

cases).

Once again, this Court’s decision in Ward is

highly instructive. There, the Court rejected the sug-

gestion that favorable tax treatment for domestic

corporations could survive rational basis scrutiny

merely because it provided a benefit for the favored

14

corporations. While it was true that providing such a

benefit was a rational state aim, the Court also had to

look at who was excluded from the benefit — as,

otherwise, “any discrimination subject to the rational

relation level of scrutiny could be justified simply on

the ground that it favored one group at the expense

of another.” 470 U.S. at 882 n.10. The Court thus

squarely rejected an analysis that (like the Sixth

Circuit’s analysis below) would look only to whether

any benefit flowed from a law while ignoring the

propriety of the line drawn by the legislature.

Indeed, the entire point of judicial review of

legislative classifications is to police legislative line-

drawing — to examine each distinction drawn by the

government to ensure that it is at least rational. E.z.,

Zobel, 457 U.S. at 60 (“When a state distributes ben-

efits unequally, the distinctions it makes are subject

to scrutiny under the Equal Protection Clause of the

Fourteenth Amendment.” (emphasis added)); accord

Romer, 517 U.S. at 632 (“[E]ven in the ordinary equal

protection cases calling for the most deferential of

standards, we insist on knowing the relation between

the classification adopted and the object to be at-

tained.”). And time and again, this Court has rejected

laws serving legitimate state interests because they

sweep either too broadly or not broadly enough: The

Court has invalidated measures designed to provide

property owners with representation on local govern-

ing boards, Quinn, 491 U.S. at 107; to prevent double

taxation of state residents, Williams, 472 U.S. at 23-

24; to provide free public education to citizens, Plyler,

15

457 U.S. at 220; to provide benefits for widows,

Weinberger, 420 U.S. at 651; and to prevent hunger,

Moreno, 413 U.S. at 538, among other things. In each

case, the Court has invalidated the law precisely

because the legislature provided the benefit to either

too few or too many — not because the government

lacked a basis for providing the benefit to anyone at

all.

* * *

A court’s task in a rational-basis case involves

more than considering whether a law is “irrational”

in the simple sense of “unreasoned.” After all, every

government action is “rational” in some sense: “It is,

in fact, hard to think of an action that does not have a

reason.” Backlund, 104 F.3d at 1033. The mere fact

that a law is recognizable as a product of human

cognition does not suffice to satisfy the Fourteenth

Amendment. Instead, a court in a rational-basis case

undertakes a more serious inquiry: whether the law

or distinction at issue is addressed to a legitimate,

rather than an illegitimate, end.

Il. The Existence Of A “Rational Relationship”

Depends On Facts.

The Sixth Circuit also erred by describing the

“rational relationship” test as an abstract inquiry into

the rationality of a law at the time it was passed — an

inquiry that can never take any facts or evidence into

account. This is incorrect on two scores. First, courts

can (and do) look at facts in rational-basis cases when

16

plaintiffs can adequately prove those facts. And sec-

ond, the appropriate factual inquiry is whether a

rational relationship exists at the time a law is being

enforced, not whether one existed whenever that law

happened to be passed.

A. Facts Matter In Rational-Basis Cases.

The Sixth Circuit’s opinion below describes a

rational-basis test that occurs in a factual vacuum,

where judges may never engage in fact-finding of any

kind. Indeed, the Sixth Circuit said it was “hard to

see the point” of a trial and findings of fact in a

rational-basis case at all. Pet. App. 33a.”

But this backhanded rejection of any role for

evidence in rational-basis cases again overlooks the

fact that rational-basis plaintiffs actually win cases,

and they do so because reviewing courts examine

the underlying factual realities of those cases. E.z.,

Zobel, 457 U.S. at 62 & n.9 (rejecting as implausible

the idea that new residents would be attracted by

a system that discriminated in favor of long-term

* As with the Sixth Circuit’s other errors in describing the

rational-basis test, it is difficult to see the point of this sweeping

rhetoric. After making the above-cited pronouncement, the Sixth

Circuit’s opinion proceeds to address the factual context of

modern marriage law for several pages. Pet. App. 34a-37a. But,

again, sweeping legal rhetoric has consequences, and — whatever

its ruling in this case — this Court should avoid ratifying the

Sixth Circuit’s mistaken implication that facts are never rele-

vant in rational-basis cases.

17

residents). The courts of appeals follow the same rule.

See, e.g., St. Joseph Abbey v. Castille, 712 F.3d 215,

223-27 (5th Cir. 2013) (affirming finding of no ra-

tional basis for casket-sales law after bench trial);

Merrifield v. Lockyer, 547 F.3d 978, 990-92 (9th Cir.

2008) (finding no rational basis for pest-control or-

dinance based on summary-judgment record).

And once again, the opinion below does not even

correctly describe the rational-basis test as it is ap-

plied by the Sixth Circuit itself in other cases. See

Loesel v. City of Frankenmuth, 692 F.3d 452, 465-66

(6th Cir. 2012) (affirming finding of no rational basis

for zoning classification after jury trial); Craigmiles,

312 F.3d 220, 222 (6th Cir. 2002) (affirming finding

of no rational basis for casket-sales law after bench

trial). Where facts are relevant in rational-basis

cases — plaintiffs, for example, may adduce evidence

disproving the government’s speculation and thereby

refute the government’s justification for a law —

courts inquire into the facts just as they do in any

other case. The Sixth Circuit’s suggestion to the con-

trary is simply mistaken, and holding otherwise

would upend decades of settled rational-basis case-

law.

Fundamentally, the Sixth Circuit’s error stems

from its misreading of dicta in FCC v. Beach Commu-

nications noting that a governmental classification

“may rest on ‘rational speculation unsupported by

evidence or empirical data.’” Pet. App. 33a (quoting

FCC v. Beach Comme’ns, Inc., 508 U.S. 307, 315

(1993)). This does not mean, as the Sixth Circuit

18

would have it, that courts in rational-basis cases

make no inquiry into the underlying facts of the cases

before them. Instead, read in context, the Beach Com-

munications dicta merely reaffirms the uncontrover-

sial proposition that rational-basis review, unlike

heightened scrutiny, is satisfied so long as there is a

factually plausible legitimate explanation for a law.

In other words, courts do not generally evaluate

rational-basis cases by subjecting legislators to cross-

examination about what “actually motivated” them,

and they similarly do not require the government to

meet an affirmative evidentiary burden “explaining

the distinction on the record.” Beach Commce’ns, 508

U.S. at 315 (internal citations and quotation marks

omitted).

But nothing about these basic truths — and

nothing in the Beach Communications opinion — in-

validates or even contradicts the longstanding princi-

ple that plaintiffs have the opportunity to introduce

evidence showing that the government’s explanation

for its law is actually implausible. See, e.g., United

States v. Carolene Prods. Co., 304 U.S. 144, 153

(1938) (“Where the existence of a rational basis for

legislation whose constitutionality is attacked de-

pends upon facts beyond the sphere of judicial notice,

such facts may properly be made the subject of judi-

cial inquiry... .” (internal citations omitted)); accord

Zobel, 457 U.S. at 62-63 (rejecting proposed explana-

tions for state-benefits distribution as implausible).

Beach Communications did not purport to over-

rule this line of cases; instead, it reaffirmed it. For

19

example, this Court’s opinion in Beach Communica-

tions cited Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456 (1981), without finding it necessary to

disavow that case’s assertion that the Court will

reject asserted legislative objectives when “an ex-

amination of the circumstances forces us to conclude

that they ‘could not have been a goal of the legisla-

tion.’” Clover Leaf Creamery, 449 U.S. at 463 n.7

(quoting Weinberger, 420 U.S. at 648 n.16); cf Beach

Comme’ns, 508 U.S. at 315 (citing Clover Leaf Cream-

ery, 449 U.S. at 464). And, indeed, in the wake of

Beach Communications, this Court has continued to

examine facts in the rational-basis context. Romer

v. Evans, 517 U.S. 620, 632-33 (1996) (explaining

that the government prevails in rational-basis cases

where government classifications are “narrow enough

in scope and grounded in a sufficient factual context

for [the Court] to ascertain some relation between the

classification and the purpose it served”).

Undoubtedly, the rational-basis test requires def-

erence, but it requires deference to reasonable policy

judgments, not deference to provably false facts. This

is true both in cases where the government loses and

in cases where the government wins. Take, for exam-

ple, Heller v. Doe, 509 U.S. 312 (1993), in which this

Court upheld a Kentucky law that allowed a person

with mental retardation to be involuntarily commit-

ted based on “clear and convincing evidence” while a

mentally ill person could only be committed based on

a showing “beyond a reasonable doubt.” Id. at 315.

Keitucky explained its law by saying that its policy

20

was to equalize the risk of erroneous confinement

between people with mental illness and people with

mental retardation, and that the lower standard of

proof advanced this goal because mental retardation

was less likely to be misdiagnosed than was mental

illness. Jd. at 322. The Court deferred to the State’s

asserted policy decision to equalize risk between

these two groups. Id. at 322 n.1. But, in evaluating

whether there was a rational relationship between

the State’s asserted end and its chosen means, the

Court specifically referred to facts, finding that there

was “a sufficient basis in fact” to believe that there

was actually less risk of misdiagnosing mental retar-

dation. Id. at 322."

As the above cases show, this Court has never

embraced the proposition that facts are categorically

irrelevant in rational-basis cases; neither has it

adopted a rule where rational-basis plaintiffs are

not allowed to disprove the speculation supporting

the government’s justification for a law. Instead, it

has repeatedly said the very opposite. The Sixth

Circuit’s contrary conclusion in this case was error

and should be rejected.

" Heller was decided on a summary-judgment record. Id.

at 318.

21

B. The Relevant Inquiry Is Whether A Law

Is Rational When It Is Applied, Not

Whether It Was Rational Whenever It

Happened To Pass.

The Sixth Circuit’s final doctrinal error concerns

the question of when a law must be rational. Must a

law be rational today when the government actually

enforces it against someone, or is it sufficient that the

law may have been rational in the abstract at the

moment of its passage long ago? The Sixth Circuit

suggests that the former is the rule: “The fair ques-

tion is whether in 2004 ... Michigan voters could

stand by the traditional definition of marriage.” Pet.

App. 34a.

The Sixth Circuit is wrong. This Court has

recognized since the inception of the modern rational-

basis test that a law that may have once been ra-

tional can be rendered irrational due to changed

factual circumstances of the world. Carolene Prods.,

304 U.S. at 153 (1938) (“(T]he constitutionality of a

statute predicated upon the existence of a particular

state of facts may be challenged by showing to the

court that those facts have ceased to exist.”). Indeed,

the filled-milk statute upheld in Carolene Products

was invalidated a little over thirty years later when

fundamental changes in the filled-milk industry ren-

dered its continued application irrational. Milnot

Co. v. Richardson, 350 F. Supp. 221, 224 (N.D. Il.

1972).

22

Other courts of appeals have long recognized this

changed-circumstances doctrine in the rational-basis

context. See, e.g., Dias v. City and Cnty. of Denver,

567 F.3d 1169, 1183 (10th Cir. 2009) (reversing a dis-

missal of a twenty-year-old challenge to a pit-bull ban

because under the allegations of the Complaint “al-

though pit bull bans sustained twenty years ago may

have been justified by the then-existing body of

knowledge, the state of science in 2009 is such that

the bans are no longer rational”); Seaboard Air Line

R.R. Co. v. City of West Palm Beach, 373 F.2d 328, 329

n.3 (5th Cir. 1967) (stating that “the slightest reflec-

tion would disclose the fallacy of a rule which would

require a determination of the reasonableness of a

long-standing ordinance in the light of circumstances

and conditions that may have existed at the time of

its adoption”).

The idea that “changed circumstances” matter

is not a unique feature of rational-basis review; it

is simply a feature of any kind of constitutional re-

view. Indeed, the relevance of changed circumstances

is uncontroversial in other contexts. For example, in

McCutcheon v. FCC, 134 S. Ct. 1434, 1456 (2014), this

Court refused to evaluate the rationality of aggregate

limits on campaign contributions in light of the

outdated facts present when the Court had originally

upheld aggregate limits in 1976 and instead evalu-

ated those limits in light of modern experience. This

Court also recently struck down parts of the Voting

Rights Act of 1965 that certain jurisdictions were

required to implement to guarantee ballot access

23

because those measures were predicated on “decades-

old data and eradicated practices.” Shelby Cnty. v.

Holder, 133 S. Ct. 2612, 2617 (2013). Finally, this

Court explained in Granholm v. Heald, 544 U.S. 460

(2005), that states’ “health and safety” justifications

for bans on direct shipment of wine by out-of-state

wineries have been made obsolete by advances in

technology that have allowed state regulatory bodies

to monitor out-of-state wineries cheaply, easily, and

efficiently. Jd. at 492 (striking down states’ laws bur-

dening or prohibiting direct shipment of wine from

out-of-state wineries).

To be sure, it may not be necessary for this Court

to predicate its decision on the merits of the changed-

circumstances doctrine — after all, the laws chal-

lenged here were passed only ten years ago, and the

Court may well find that the outcome of the case

would be the same in 2004 as it will be in 2015. But

the Sixth Circuit’s casual announcement that the only

“fair question” is whether a law is rational when

passed would radically change the law in other cases.

It would mean, for example, that a plaintiff challeng-

ing a law passed in 1924 to protect a city’s streetcar

industry would be unable to point out to a court that

the streetcar industry had ceased to exist 70 years

later. Cf. Santos v. City of Houston, 852 F. Supp. 601,

608-09 (S.D. Tex. 1994).

* * *

24

Whenever this Court has decided a rational-basis

case, it has looked for a factually plausible (that is, a

“rational”) connection between the government’s ac-

tions and some legitimate end. The courts of appeals,

following that precedent, do the same. Adopting the

view of the rational-basis test articulated by the ma-

jority below would put an end to this longstanding

practice: It would replace deferential review with no

review at all. But neither judicial deference nor ju-

dicial humility requires judicial abdication or judicial

blindness.

To the extent this Court applies rational-basis

review to this case, it should make clear that the test

applies the way it always has — with deference tem-

pered by an understanding of factual reality. The

precedents of this Court, as well as the many lower-

court decisions relying on those precedents, require

nothing less.

¢

CONCLUSION

The rational-basis test described by the Sixth

Circuit below bears little resemblance to the test

actually applied by this Court and by the courts of

25

appeals. This Court should reject the serious doctri-

nal errors of the opinion below.

Respectfully submitted,

INSTITUTE FOR JUSTICE

WILLIAM H. MELLOR

DANA BERLINER

JEFFREY T. ROWES

ROBERT J. MCNAMARA*

ROBERT EVERETT JOHNSON

901 North Glebe Road

Suite 900

Arlington, Virginia 22203

(703) 682-9320

rmcnamara@ij.org

*Counsel of Record

Counsel for Amicus Curiae

Institute for Justice