Why the Court Can Strike Down Marriage Restrictions under Rational-Basis Review


As the landmark cases of Hollingsworth v. Perry and United States v.Windsor make their way to the Supreme Court, inevitable questions arise about the standard the Court will apply in these cases. Like others, I believe the Supreme Court may well analyze state or federal restrictions on same-sex marriage under a rational-basis framework. That begs the question of which kindĀ of rational-basis analysis it will employ. The Court has been fairly consistent instating that rational-basis review requires governmental action be “rationally related to a legitimate governmental interest.” Yet, as academic commentary has observed, that formulation in fact encompasses two different standards: “ordinary” rational-basis review and rational basis “with bite.” Under the first, the Court would uphold governmental restrictions on same-sex marriage; under the latter, it would invalidate them. So the crucial question is which rational-basis standard the Court will apply.

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