US v. Windsor: Rational Basis Review Should Not Preclude Unconstitutionality

US v. Windsor: Rational Basis Review Should Not Preclude Unconstitutionality

JURIST Guest Columnist Robert McNamara, an attorney for the Institute for Justice, argues that the standard of review that the US Supreme Court ultimately uses in deciding US v. Windsor should not be perceived as the determinative element in that case’s eventual outcome…

When the US Supreme Court heard oral arguments [PDF] on March 27, 2013, in US v. Windsor, a challenge to the federal Defense of Marriage Act (DOMA), a substantial amount of energy was devoted not to the complex question of DOMA’s constitutionality, but to the simple issue of what standard of review the Court would use in evaluating DOMA. Arguing for the administration of US President Barack Obama, Solicitor General Donald Verrilli urged the Court to apply “heightened” scrutiny. Arguing in defense of DOMA for the Bipartisan Legal Advocacy Group (BLAG), Paul Clement insisted the Court could only apply “rational basis” review. Then, Roberta Kaplan, who represents the actual plaintiffs in the case, noted that the Court could strike DOMA down under any standard of review. However, the unmistakable focus of her argument was the process by which the Court would conduct its analysis, rather than what that analysis would show.

As Justice Ruth Bader Ginsburg observed near the end of the argument, though, this focus is based on an unspoken — and false — assumption: that the only way citizens can ever prevail against the government is if they benefit from heightened scrutiny. But we know this not to be true. We know that citizens can prevail against the government without heightened because citizens do prevail. Once we reject the false assumption that heightened scrutiny is the only path to victory against government litigants, the analysis in Windsor becomes dramatically simpler.

Of course, this unspoken assumption about heightened scrutiny is unsurprising, if only because it is the same assumption held by a seemingly huge swath of lawyers. “Strict scrutiny” is seen as code for “the government always loses,” whereas “rational basis review” is seen as code for “the government always wins.” Thus, the parties’ approach is understandable: if the level of scrutiny determines the outcome, it makes sense to expend energy on arguing the level of scrutiny.

The problem with this approach is that it does not accurately describe how the rational basis test works in fact. It is, of course, a truism that the rational basis test is extremely deferential to government, and any consitutional-law student worth her salt can point to sweeping dicta about how the test requires courts to avoid questioning “the wisdom, fairness, or logic of legislative choices” (as stated in FCC v. Beach Communications) and requires a plaintiff to “negative every conceivable basis” for a challenged law (as stated in as stated in Heller v. Doe). Such dicta undeniably exists; the problem with it is that it cannot be squared with the Court’s actual decisions in rational basis cases.

As described, the rational basis test embodied by this sweeping dicta imposes a literally impossible burden. A savvy attorney (or a savvy judge) will always be able to conceive of a rationale that isn’t specifically “negative[d]” by a plaintiff’s evidence. If that is how the test works, we should expect every single claim to fail, every single time.

And yet they do not. In fact, rational basis plaintiffs have succeeded, again and again. They have succeeded in famous court decisions, like Lawrence v. Texas or Romer v. Evans, and they have succeeded in cases that many people have never heard of, like Williams v. Vermont (which dealt with automobile taxes) and Zobel v. Williams (which dealt with how Alaska distributed the funds from the state’s oil revenues). Of the more than 100 cases since 1970 in which the Supreme Court has applied the rational basis test to answer a question, the Court has answered that question in the plaintiffs’ favor more than 20 times.

This alone tells us that characterizing the rational basis test as one where “the government always wins” is false. The test described in this sweeping dicta simply can’t be squared with the many cases in which the Court has applied the test and found the government wanting. If that description is false — and it is — only one question remains: why do plaintiffs win rational basis cases?

The answer is clear: plaintiffs win these cases because, despite the sweeping commentary about how deferential the rational basis test is, the Court does not actually treat the test as a requirement that it abandon its basic judicial function. The Court looks to see whether a purported rational basis for a law can be squared with the real facts in the record. It looks to see whether there is a logical connection between what the government says its ends are and what the government is actually doing. It looks to see whether the government’s ends are legitimate, and whether the government can actually be believed to be pursuing its stated ends (as opposed to other, illegitimate purposes). It is true, of course, that the Court is deferential when it applies the rational basis test, but it is not absent. It still demands both truth and logic from government litigants — and when one of the two does not support a challenged law, that law falls.

This simple insight — that the rational basis test, in practice, is a test and not simply an excuse to rule in favor of the government — has significant implications for the Court’s decision in Windsor. The crux of the plaintiff’s argument in the case is that the government’s stated objectives cannot be believed — that, as a matter of fact, it is implausible to believe that the federal government is achieving a legitimate federal purpose by refusing to recognize state-sanctioned same-sex marriages. This is a question that the Court can answer, and one it can answer without resort to abstract inquiries about the “level” of scrutiny it is allowed to apply. It can simply look at the facts and determine whether the government’s asserted interests can be squared with the evidence of what the government is actually doing. It can, in a word, judge.

The advantage to this approach is two-fold. First, it allows the Court to avoid the heightened-scrutiny question altogether. After decades of experimentation, the Court’s attempt to fit the realities of American government into strict “tiers” of scrutiny has yielded a jurisprudence that is, at best, inconsistent and difficult to justify on principle. More through historical accident than consistent analysis, some characteristics (like whether one’s parents were married) yield higher levels of judicial protection, while others (like one’s level of educational attainment or simply one’s level of political influence) do not. Delving back into the tiered-scrutiny thicket to decide whether one more subgroup of Americans is (or is not) entitled to meaningful judicial review is unlikely to improve matters.

Second — and, for millions of Americans whose constitutional rights deserve equal protection, perhaps more importantly — this allows the Court to once and for all reject its most expansive dicta about the rational basis test and reaffirm a simple truth: the US Constitution requires judges to look at facts in all cases. There exists no standard of review under which the Court may simply disregard logic. There exists no standard under which the Court may disregard facts, nor one under which the Court will allow itself to be lied to about a law’s real purposes or effects. Finally rejecting the aforementioned dicta and explicitly embracing an articulation of the rational basis test that accurately explains all of the Court’s rational basis decisions (the ones where the government wins and the many where the government loses) will not just clarify the Court’s jurisprudence. It will also be a bedrock victory for real judicial engagement by reassuring judges in lower courts that they are allowed to do their jobs — to look at evidence with their eyes open and their minds engaged — in all cases.

Nothing could be simpler. But, for litigants across the country, nothing could be more important.

Robert McNamara serves as an attorney with the Institute for Justice. He joined the Institute in August 2006 and litigates constitutional cases protecting First Amendment rights, property rights, economic liberties and other individual liberties in both federal and state courts.

Suggested citation: Robert McNamara, US v. Windsor: Rational Basis Review Should Not Preclude Unconstitutionality, JURIST – Hotline, Apr. 2, 2013,

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