Rational-basis test won’t answer sodomy case

by Anthony Sanders

When the Supreme Court rules on the issue of homosexual sodomy this coming spring, it will likely confront one of its favorite devices – the “rational-basis test.” The test is extremely easy to meet. When it isn’t, it’s a sure sign that the justices feel so strongly about an issue that they’re willing to ignore their own precedent on its application.

The Supreme Court uses “rational-basis” in a few areas, the Equal Protection Clause of the Constitution being perhaps the most important. The clause itself is not very helpful. It merely guarantees every “person within (a state’s) jurisdiction equal protection of the laws.” What does this mean? Equal protection of murderers and nuns? Of hairdressers and masseurs? Of men and pregnant women? When is differing treatment of two groups OK and not OK? The Constitution provides little to go on.

From history, however, we can deduce equal protection definitely applies to race. It was, after all, added to the Constitution in response to post-Civil War state-sponsored racism. The Supreme Court has allowed governments to treat people of different races differently only when there is a “compelling interest.” For treating men and women differently the standard is slightly lower, allowing for the (arguably) natural differences that exist between the sexes. For most classes of people, the Supreme Court uses the rational-basis test. If a government has a “rational basis” for treating people differently (such as locking up criminals and letting noncriminals go free) it can do so.

So, you’re probably asking, what does “rational” mean? Good question – so good, that the Supreme Court doesn’t really have an answer. The best it can do is to say differing treatment must further a “legitimate governmental interest.” Examples of this are public safety, health and morality.

The Supreme Court will confront these “interests” head-on in the sodomy case. Homosexuality has never received heightened scrutiny from the Supreme Court, in the equal protection context or elsewhere. In fact, in 1986 the Supreme Court stated that the Due Process Clause, another constitutional battleground, did not give heightened protection to homosexual sodomy. It also argued that the state (in that case Georgia, in this year, Texas) has a rational basis for banning homosexual sodomy – morality. Since the Georgia Legislature had banned sodomy, the will of that “majority” was a sufficient reason for upholding the ban.

With interests such as public safety, health and morality at its disposal, the Supreme Court can uphold, in a rational-basis context, any law it wishes, no matter how crazy or arbitrary. Think about it: Whatever the law, there’s always some reason you can think of to defend it. With this in mind, it’s interesting to note the Supreme Court has on occasion ruled that laws fail to meet the rational-basis test.

One example, in 1985, had to do with residence permits for the mentally disabled. The Supreme Court stated there was no reason related to public safety, health or morality that justified not issuing the mentally disabled a permit. After reading that opinion, however, if you rack your brain you can think of reasons that stand up to the prior extremely deferential rational-basis test standards. The Supreme Court ignored that precedent and ruled to protect the disabled while keeping its cherished rational-basis invention.

Why didn’t the Supreme Court do this for gays? Probably because a majority of justices did not feel for them as they did for the mentally disabled. This demonstrates the bankruptcy underlying the rational-basis test: It masks the Supreme Court’s reasons for protecting certain groups and ignoring others. If the Supreme Court really wanted to use the test as an actual test, it would pay greater attention to the governmental interests it has recognized and the reasons for those interests.

If it gives true “rational” scrutiny to the Texas sodomy law, the Supreme Court will have to make some real-world observations – something the Supreme Court often says it is not worthy to do. It will have to ask whether sodomy laws protect against the spread of AIDS or whether that argument is a joke. It will have to ask whether a majority of a state’s population can dictate what same-sex consenting adults can do in their own bedrooms, or if the law is useless in protecting morality. Are there rational bases for banning same-sex sodomy? You bet. Should they stand up in court? No. They fail so badly you can hear the laugh track. The problem is that the Supreme Court has grown deaf to the laugh track, and its justices instead deliver their own political shtick.

Will the Supreme Court rule in favor of gays? Very likely. Will it clear up the absurdities underlying the rational-basis test? Almost certainly not. It will continue to let law suffer and policy rule. It will continue to dodge applying the test it has created.

Anthony Sanders’ biweekly column appears alternate Thursdays.

He welcomes comments at [email protected].

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