Rational basis review

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Rational basis review is a doctrine of US constitutional law used to evaluate the permissibility of exceptions to the equal protection clause. More particularly, it is the standard of constitutional review that the judiciary uses to evaluate a legislative classification which does not involve any suspect classifications. Currently, the only "suspect classifications" are race,[1] religion,[2] and national origin,[3]. Sex[4] and legitimacy (marital status of one's parents at birth) are quasi-suspect classification. Unequal treatment based on a suspect classification requires the strongest level of justification (strict scrutiny); unequal treatment based on a quasi-suspect classification requires an intermediate degree of justification (intermediate scrutiny); unequal treatment on any other grounds only requires rational basis review. Examples of grounds of discrimination subject to rational basis review include age, disability, wealth, political beliefs or affiliations, and criminal history.

The question of the correct standard of review for sexual orientation is unsettled. It has been suggested that, based on US Supreme Court jurisprudence[5], it must be considered a quasi-suspect classification; but while some lower courts have embraced that argument, the US Supreme Court itself has not yet spoken.

The doctrine of "rational basis review" suggests that where a government classification, which adversely affects one group, involves no suspect classification against a "discrete & insular minority"[6], supports a legitimate state interest, and is reasonably related to that legitimate interest, the classification passes constitutional muster.[7] Even a state interest that is pretextual will be accepted; this standard of review is very light, and deferential to the state.

Rational basis classifications are largely economic, implicating only the government's police powers. The distinction between "filled" milk and real milk[8] is an example of a rational basis classification.

Current events[edit]

There is currently some doctrinal confusion on the application of rational basis review to classifications on the basis of sexual orientation. The cases Romer v. Evans and Lawrence v. Texas both appear to apply rational basis review in rejecting classifications on the basis of sexual orientation; they base their decisions on the grounds that the enforcement of neither animus nor morality can be a legitimate state interest. However, such a momentous holding suggests that the real standard of review being applied is something higher than rational basis, because disallowing morality as a rational basis would be potentially too far for the current moderate Court. As a result, it is likely that the Court is using something higher than "rational basis" in evaluating discrimination against homosexuals, but that the Court does not wish to say as much. The standard of review for sexual orientation cases, then, has been mockingly called "rational basis with teeth," making light of the Court's current confusion.


  1. Brown v. Board of Education
  2. Yick Wo v. Hopkins (118 U.S. 356)
  3. Korematsu v. U.S. (323 U.S. 214)
  4. U.S. v. Virginia,
  5. Romer v. Evans, see also Lawrence v. Texas
  6. U.S. v. Carolene Products, 304 U.S. 144, footnote 4
  7. U.S. v. Carolene Products, 304 U.S. 144
  8. See Carolene Products, supra