# Amicus Curiae Brief — Deboer v. Snyder, 135 S. Ct. 1040 (2015) (No. 14-571)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0308%3A077

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

oupreme Court, U.s.
FILED

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.

°

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

DANA BERLINER

JEFFREY T. ROWES

ROBERT J. MCNAMARA*

ROBERT EVERETT JOHNSON

901 North Glebe Road, Suite 900

Arlington, Virginia 22203

(703) 682-9320

rmcnamara@Gij.org

*Counsel of Record

Counsel for Amicus Curiae
Institute for Justice

COCKLE LEGAL BRIEPS (800) 335-6064
WWW COCKLELEGALSRIEFS.OOM

i

TABLE OF CONTENTS

Page
, & fe Fic. ¢ .. poe ii
INTEREST OF AMICUS CURIAE..................0.00005 1
SUMMARY OF THE ARGUMENT .......................
BT icc ccncisiicariitinepetinenteinniinannniiditaiiibisiininniaiiatninnaianantinn 5
I. The Rational-Basis Tesi Requires An Actual
I Se itincnccsececscesensentnmmmnsncsenses 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”
I Ge Bc cciescssennasnnsnntnanssnsnnsessienes 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

SEP IET sieresncescccninstunesansensitinsdenaietasennnennen 24

i

TABLE OF AUTHORITIES

CASES

Allegheny Pittsburgh Coal Co. v.
Cnty. Comm’n of Webster Cnty.,

Re Sk See CR ceretreteeseccccnccnnssccecsece

Backlund v. Hessen,

104 F.3d 1031 (8th Cir. 1997) ..............

City of Cleburne v. Cleburne Living Ctr.,
Se es Ge Ce Peete cncssencccsnseentnneses

Clayton v. Steinagel,

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

Cleveland Bd. of Educ. v. LaFleur,

ee

Craigmiles v. Giles,

312 F.3d 220 (6th Cir. 2002) ................

Dias v. City and Cnty. of Denver,

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

FCC v. Beach Commc’'ns, Inc.,

508 U.S. 307 (1993)................. phiniitieirenint

Granholm v. Heald,

Be Sr Ge Ge Pere crceccccceeccccsssncnceness

Heller v. Doe,

ee

Hooper v. Bernalillo Cnty. Assessor,

STB WTB. GER CRI ooccceccecccccccccccccsccccese

James v. Strange,

og

Page

ii’

TABLE OF AUTHORITIES ~— Continued

Page

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

for Port of New Orleans,

ee ee 10, 11
Lindsey v. Normet,

Ee Lee ee 6
Loesel v. City of Frankenmuth,

692 F.3d 452 (6th Cir. 2012) ......................cccceceeseee 17
McCutcheon v. FCC,

creat leemanetinsenlioninnanel 22
Merrifield v. Lockyer,

547 F.3d 978 (9th Cir. 2008) ....................2...c008 12,17
Metro. Life Ins. Co. v. Ward,

Se es I riclicidninnceeeneninesiinitonnes 6,9, 10,13, 14
Milnot Co. v. Richardson,

350 F. Supp. 221 (N.D. Ill. 1972) ............................ 21
Minnesota v. Clover Leaf Creamery Co.,

FR a ene 19
Plyler v. Doe,

EE TT 6, 14
Powers v. Harris,

379 F.3d 1208 (10th Cir. 2004) ........00 12
Quinn v. Millsap,

EERE ae ee ene 5,14
Reed v. Reed,

ES nes aa ee re ee? OS 6

Romer v. Evans,
gS SRE nee sae oe ees e ee 3,5, 14,19

iv

TABLE OF AUTHORITIES ~— Continued

Page

St. Joseph Abbey v. Castille,

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

eran 1, 7, 12,17
Santos v. City of Houston,

852 F. Supp. 601 (S.D. Tex. 1994)...................-csss00 23
Schware v. Bd. of Bar Exam’rs,

a seniamninlaeiensumnisenl 5
Seaboard Air Line R.R. Co. v.

City of West Palm Beach,

EE I, BID D ccdrecccnccceccncssconsesnsesaccees 22
Shelby Cnty. v. Holder,

BEES ere eee ane 23
Turner v. Fouche,

I i inetd 6
United States v. Carolene Prods. Co.,

8 EET eee anne eT ee 18, 21
United States v. Lopez,

Ee nee aaa 6
United States v. Morrison,

asian catenin natemdialanianinl 7
U.S. Dep’t of Agric. v. Moreno,

8 Eee 6,10, 15
Weinberger v. Wiesenfeld,

ae 6, 15,19

TABLE OF AUTHORITIES ~ Continued

Page

Williams v. Vermont,

I i 6, 14
Zobel v. Williams,

I 6, 14, 16, 18
CONSTITUTIONAL PROVISIONS
Se Ss GUL CIIEW wncccnscdsccrccsschecnsncenssineseees passim
RULES
IE CAIN GERD GW ARIE Pacttccccnsnccsscdiccinceaswseniennmenenee 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) (aw barring undocu-
mented children from public education fails rational basis
scrutiny); Zobel v. Williams, 457 U.S. 55, 65 (1982) (law 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) (Jaw
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 encugh, 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.

I. The Rational-Basis Test Requires An Actual
Legitimate Interest.

According to the Sixth Circuit, under the rational
basis test, “[s]o 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. Id. 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 “legitimuie 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. Id. at 882 & n.10.° Because the very “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 to 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.g.,
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 Commce’ns, Inc., 508 U.S. 307, 315
(1993)). This does not mean, as the Sixth Circuit

a

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 Commc’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.
Kentucky 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. Jd. 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
+o 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0308%3A077. Public record. Not legal advice.