"Rational Basis" Test Not So Deferential Under Many State Constitutions

An important reminder from a recent Iowa Supreme Court decision; some lawyers know this point well, but many don't.


From Behm v. City of Cedar Rapids (Iowa Jan. 25, 2019):

A number of states have adopted different tests for substantive due process and equal protection claims under their state constitutions when fundamental interests are not implicated. For instance, in South Dakota, the rational basis test utilized in substantive due process requires "a real and substantial relation" between a statute and the objects sought to be obtained. Katz v. S.D. Bd. of Med. & Osteopathic Exam'rs, 432 N.W.2d 274, 278 & n.6 (S.D. 1988). The New Jersey Supreme Court has rejected the federal approach in favor of a balancing test. See Planned Parenthood of Cen. N.J. v. Farmer, 762 A.2d 620, 633-38 (N.J. 2000). The Minnesota Supreme Court has been unwilling to hypothesize a rational basis not asserted in support of a statute, has required that statutory distinctions "must be genuine and substantial," and has stated that there must be "a reasonable connection between the actual … effect of the challenged classification and the statutory goals." State v. Russell, 477 N.W.2d 886, 888-89 (Minn. 1991) (first quoting Wegan v. Village of Lexington, 309 N.W.2d 273, 280 (Minn. 1981)). The Supreme Courts of Alaska and Vermont have adopted a sliding-scale-type approach to equal protection that can lead to a more stringent review when fundamental interests are not involved. See Alaska Pac. Assurance Co. v. Brown,687 P.2d 264, 269 (Alaska 1984); Baker v. State, 744 A.2d 864, 873 (Vt. 1999).

A body of the academic literature has long recognized and often advocated that states may develop their own equal protection and substantive due process doctrine. See, e.g., Randal S. Jeffrey, Equal Protection in State Courts: The New Economic Equality Rights, 17 Law & Ineq. 239, 356-57 (1999); Jeffrey M. Shaman, The Evolution of Equality in State Constitutional Law, 34 Rutgers L.J. 1013, 1121-23 (2003); Robert F. Williams, Equality Guarantees in State Constitutional Law, 63 Tex. L. Rev. 1195, 1222-24 (1985).

[Likewise, i]n Racing Ass'n of Central Iowa v. Fitzgerald (RACI I), we originally held that the legislature's classification in a taxation statute between land-based casinos and riverboats violated equal protection under the Fourteenth Amendment of the United States Constitution. 648 N.W.2d 555, 558, 562 (Iowa 2002). The United States Supreme Court reversed. Fitzgerald v. Racing Ass'n of Cent. Iowa, 539 U.S. 103, 110, 123 S. Ct. 2156, 2161 (2003). On remand, we held that, notwithstanding the unanimous decision of the United States Supreme Court under the Equal Protection Clause of the Fourteenth Amendment, the classification was nonetheless invalid under article I, section 6 of the Iowa Constitution. RACI II, 675 N.W.2d at 3. Clearly, our approach to equal protection in RACI II had more teeth than that employed by the United States Supreme Court.

An important question in equal protection and due process settings is the role of fact-finding in determining the validity of the classification or legislation. RACI II emphasizes that the legitimate purpose of the classification must be "realistically conceivable" and have "a basis in fact." Id. at 7-8 (emphasis omitted) (first quoting Miller, 394 N.W.2d at 779). On the other hand, we have stated that government "is not required or expected to produce evidence to justify its legislative action." Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 458 (Iowa 2013) (quoting Ames Rental Prop. Ass'n v. City of Ames, 736 N.W.2d 255, 259 (Iowa 2007)).

We think RACI II and Horsfield may be easily reconciled. While the state or municipality is not expected or required to produce evidence to justify its action, a party attacking the classification may do so in an effort to show that the claimed legitimate interest is either not "realistically conceivable" or does not have "a basis in fact." RACI II, 675 N.W.2d at 7-8 (emphasis omitted) (first quoting Miller, 394 N.W.2d at 779). In other words, once the state articulates a legitimate governmental interest that appears plausible on the face of the statute, the burden of coming forward with evidence to attack the asserted justification shifts to the challenger.

NEXT: Automated Speeding Enforcement Constitutional, Says Iowa Supreme Court

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  1. It seems odd that states can craft their own approach to due process but not their own approach to, say, incorporation of religion or free speech, since they all stem from the incorporation of constitutional amendments to their actions, but I admit to not having read any of the literature cited.

    1. It's more a matter of them being allowed to be more protective of rights than the federal courts feel like being, but not less. They can rule something unconstitutional under the state constitution that the federal courts would have been willing to permit, but if the feds don't like something, they can't rule it constitutional.

      1. I'm not sure how the standard of review fits in with this view. How, for example, does New Jersey's "balancing test" compare with the "rational basis test?" Neither is per se more inclusive than the other. Are you saying that New Jersey is entitled to use a balancing test only when it is more lenient that the rational basis test but not when it is more strict? But that would imply that New Jersey is not free to reject the rational basis test in toto, since it would have to be examined before NJ could apply its preferred test.

    2. State courts can hold that their own constitution has fewer protections than the federal constitution if they wanted to, but they also have a duty to uphold the federal constitution. That means state actors can be held to a higher standard than the federal constitution if the state's constitution so requires but can't be held to a lower standard.

  2. It seems odd for this post to leave out any mention of Patel v. Texas Department of Licensing, decided by the Texas Supreme Court in 2014. While Patel was decided under the Privileges and Immunities Clause and the Due Course of Law guaranty of the Texas Constitution, the decision contains a lengthy discussion of both the rational basis test and the real and substantial relationship test when applied to the Due Course of Law guaranty - really the equivalent of substantive due process, and the Court makes clear that under either test, the Texas regulations at issue (occupational licensing requirements for eyebrow threaders) failed constitutional muster. The concurring opinion by then Justice Don Willett, appointed by Trump to the Fifth Circuit Court of Appeals, is well worth the read.

  3. A striking example of how differently federal and state courts construe rational basis appears in litigation challenging Florida's statutory prohibition against gay men and lesbians adopting children. Florida's legislature enacted the ban in 1977 in response to Anita Bryant's crusade against homosexuality. The ACLUFL first challenged the ban in federal court relying on the fourteenth amendment's due process and equal protection clauses. Applying the rational basis test, the U.S. Court of Appeals for the Eleventh Circuit upheld the constitutionality of the ban in Lofton v. Secretary, Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004). Undaunted, the ACLUFL again challenged the ban in state court based on the state constitution's equal protection guarantee. 6 years later, Florida's Third District Court of Appeal again applied the rational basis test but held the statutory ban unconstitutional for lack of a rational basis in violation of Article One, Section Two of the Florida constitution. The state did not appeal to the Florida supreme court, and instead abandoned enforcement of the statute. The Florida legislature finally repealed the statute in 2015.

  4. From the decisions I've seen, the federal courts think "rational" is synonymous with "irrational" and "non-existent" as long as the state asserts otherwise, weight of evidence be damned, even if that evidence suggests the law would actually *harm* the stated interest. If states are less deferential, good.

    1. From the decisions I've seen rational is "This is how I get the result I want".

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