Why the Rational Basis Test Won Apply in Two Important Cases This Term Does the rational basis test make dead letters of the Due Process and Equal Protection Clauses?
Hardly. That is because it does not always apply. At around the same time that the Supreme Court devised the rational basis test, it also announced that it would not apply that test to laws that deny basic civil liberties or classify people using illicit criteria such as race. These laws, instead, would be judged by a much tougher measure, one that the Court came to describe as “strict scrutiny.” The two most closely watched cases of the current Supreme Court Term nicely illustrate the limited domain of the rational basis test. First, there is Lawrence v. Texas, challenging the Texas law prohibiting same-sex sodomy. Lawrence poses the questions whether sexual intimacy counts as a basic civil liberty, and whether laws that distinguish between same-sex and opposite-sex intimacy employ an illicit classification. In deciding those questions, the Court probably will not apply the rational basis test. The petitioners in Lawrence argue that the Texas law should be struck down even under the r
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