Facts matter in a constitutional challenge

July 17, 2013 | By CHRISTINA MARTIN

This week, PLF filed an amicus brief asking the Texas Supreme Court to review Patterson v. City of Bellmead.  The Pattersons are challenging a law that requires a kennel permit for any property owner that has more than four cats or dogs on any single parcel of land.  The Pattersons lost their case after the Texas Court of Appeals said that facts don’t matter in cases challenging the constitutionality of laws that are subject to the so-called “rational basis” test. While the kennel license law may seem ordinary, the court’s treatment of the Pattersons’ case could have a broader impact, threatening individuals’ ability to challenge a wide variety of laws.

In most cases, when a person challenges the constitutionality of a law, courts use the rational basis test, which says that a law is valid as long as it is rationally related to the health, welfare, or safety of the public.  This test is very deferential to the government, giving lawmakers broad leeway to decide how to regulate matters that affect the public.  Deference is important since it is lawmakers’ job to weigh and balance competing policies. But it is also important for judges to make sure that laws do not violate individual rights. If judges give too much deference to lawmakers, then the Constitution loses any power to protect individuals from the overreach of politicians and bureaucrats.

The Pattersons wanted the opportunity to prove that the kennel-license law is irrational and does not advance public health or safety. But the court effectively gave the government a free pass from constitutional scrutiny. Under its fact-free analysis, a plaintiff could not possibly challenge the constitutionality of the many laws that courts put in the rational-basis category. As we stated in our brief:

The City of Bellmead should not be permitted to avoid [a] factual inquiry simply by stating its law is related to health, safety, and welfare. A legislature’s mere say-so cannot insulate a law from constitutional review, because the government defendant will, of course, always assert that its laws or actions are rational or that they benefit the public in some way.

Constitutional attorneys know that it is difficult to win a case under rational basis review.  But PLF has done it before in cases like Merrifield v. Lockyer, where we  succeeded in overturning a licensing law that did not protect the general public, but only amounted to economic protectionism.  We only won that case because the court looked at the actual evidence. If the court had refused to consider the facts, like the court did in the Pattersons’ case, then Mr. Merrifield and others like him would still be subject to the same anti-competitive licensing burdens.

Whatever one thinks of the Pattersons’ lawsuit, the Constitution demands that they have the opportunity to prove their case that the government is violating their rights. The Constitution sets up barriers to protect individuals against the government.  And it is the judiciary’s job to keep the government from passing those barriers. It cannot fulfill that duty if it refuses to consider the facts.