What the heck is rational basis scrutiny?

August 15, 2022 | By DONNA MATIAS
Hair braider

Unless you’re a legal wonk, you probably don’t spend a lot of time thinking about the Supreme Court’s use of rational basis scrutiny. In fact, it’s likely you’ve never encountered the term before.

Whether you are familiar with it or not, the fate of many high-profile federal lawsuits, including the controversial Dobbs v. Jackson Women’s Health case, have hinged on courts’ use of rational basis scrutiny.

Put simply, rational basis scrutiny is a method courts use to evaluate the constitutionality of challenged laws. It is the most deferential of methods, in stark contrast to strict scrutiny. In general, the latter can be summarized as “government loses.” Rational basis scrutiny can be thought of as “government wins.”

Rather than dive right into the legal complexities, perhaps the best way to understand rational basis is to take a closer look at the courts in action, starting with some examples from the burdensome world of occupational licensing.

Rational basis 101

Occupational licensing is a form of economic regulation that forces individuals to ask the government for permission—usually after jumping through training and examination hoops—before they can earn a living in their given professions.

This makes sense for someone like a doctor, who must demonstrate expertise that could impact the life and health of a patient. But some of the professions that require these licenses are objectively absurd, like interior designers and floristry.

While the state asserts some version of health and safety/consumer protection justifications for its licensing scheme, practitioners who have filed suit challenging these laws contend that their right to earn a living has been unconstitutionally thwarted.

How do courts rule in these cases?

Enter rational basis.

As a starting point, courts employing rational basis presume that the laws, in this case occupational licensing requirements, are constitutional.

This means the burden falls to the plaintiff to defeat that presumption by showing that there is no rational relationship between the government’s interest (usually health and safety or consumer protection) and the means chosen to achieve that interest (requiring occupational licenses).

The court’s inquiry is twofold: 1) Does the government have a legitimate interest? And 2) Is there a reasonable “fit” between the asserted interest and the challenged law? The fit need not be exact, but neither can it be incongruous.

In making these judgments, the court’s role is not to craft the best law or to dictate the best policy; those responsibilities belong to legislators.

The problem lies in the different ways that courts interpret their judicial obligations.

Some courts blaze right past the legitimate interest question, accepting at the most superficial level whatever the state asserts as legitimate.

Some hypothesize about what legislators might have thought or facts that might have been true, while others engage more deeply with the state’s assertions and the evidence in the record.

As a result, the answer to the question, “Does rational basis scrutiny require total deference to the government or meaningful, substantive inquiry?” is, to quote ‘They Might Be Giants,’ “Yes, no, maybe, I don’t know. Can you repeat the question?”

The typical scenario involves a state law restricting who can and cannot engage in these seemingly benign activities. In both instances—indeed, in most instances where occupational licensing laws are challenged—the state asserts its obligation to protect consumer health and safety.

Let’s look at occupational licensing laws in three areas: casket sales, African hairstyling, and pest control.

An open casket market? That’s thinking outside of the box!

Consider a basic economic transaction: the sale of a casket. That seems simple enough.

In Craigmiles v. Giles, plaintiffs operated a casket sale business in Tennessee. The company did not handle dead bodies, counsel grieving family members, or otherwise engage in any funeral-related services.

Plaintiffs challenged a state law requiring them to obtain a funeral director license in order to sell their wares. To obtain a license, plaintiffs would have to complete two years of education/training in activities that had little or nothing to do with the design or sale of caskets.

In reviewing the lower court’s decision striking down the law as it applied to plaintiffs, the 6th Circuit Court of Appeals articulated standard rational-basis-speak: the presumption of constitutionality, the government’s lax evidentiary burden, and the “constitutionally irrelevant” reasoning that might underlie legislative decisions.

Indeed, mere “‘rational speculation’ linking the regulation to a legitimate purpose” could satisfy the standard.

The state argued that licensure for casket sellers was necessary to protect public health and safety, because all licensees would be trained in handling dead bodies. Additionally, it argued that poor-quality caskets might cause bacteria or toxic material to leak from the corpse.

The court saw through these purported public health justifications.

First, in operating their businesses, plaintiffs didn’t touch—must less embalm—dead bodies. They literally sold the containers for dead bodies and delivered them (the caskets, not the bodies) to a designated funeral home.

Second, Tennessee law didn’t require that corpses be buried in any container, so the state’s argument about quality made no sense.

Additionally, the evidence showed that the caskets sold by plaintiffs were nearly identical to those sold by licensed funeral directors. The only difference between the two was price. Guess which charged higher prices?

The 6th Circuit showed an aggressive skepticism about defining “funeral directing” to include retail sales of funeral merchandise. This, the court said, struck it with “the force of a five-week-old, unrefrigerated dead fish…a level of pungenc[y] almost required to invalidate a statute under rational basis review.”

After cremating each and every justification put forth by defendant, the court concluded that “we are left with the more obvious illegitimate purpose to which licensure is very well tailored”: protection of licensed funeral directors from competition in casket sales, to the detriment of consumers.

Such economic protectionism was not a legitimate purpose; therefore, the law did not survive rational basis scrutiny.

If Craigmiles teaches us anything about rational basis, it’s that a court will not simply accept whatever the state puts forth to justify its laws. Certain justifications—namely “naked” economic protectionism—can never be legitimate. Right?

Wrong.

Powers v. Harris involved a similar funeral director licensing scheme in Oklahoma.

The Powers plaintiffs ran an internet-based casket company. They wanted to sell caskets in-state, but doing so required a funeral director’s license. Unlike the Craigmiles court, the 10th Circuit Court of Appeals chose a different path.

In Craigmiles, the court scrutinized each of the state’s asserted justifications and, finding nothing credible, concluded that the challenged laws were grounded in economic protectionism, an illegitimate government interest.

In Powers, when the state proffered only a consumer protection justification, the 10th Circuit declared that it was obligated to try to come up with any conceivable justification, even if not put forth by the parties.

It then conceived not only that economic protectionism might be behind the challenged scheme, but also that it was a perfectly legitimate interest. From there, it had no trouble finding that the law was very well tailored to achieve a “legitimate” interest; it therefore upheld it as constitutional.

Hairy styl-ist cases

Dy(e)ing to hear more about rational basis? Let’s talk hair.

Should the state protect us from hairstylists, even those who don’t use harsh chemicals or wield dangerous styling weapons, by gatekeeping who is allowed to touch the hair of its citizens for compensation?

Numerous cases have challenged the application of a state’s cosmetology licensing laws to practitioners of African hairstyling (usually braiding, but sometimes locking or other methods).

Typically, the cosmetology licensing laws require applicants to complete over a thousand hours of state-approved classes that address a variety of topics related to beautification, such as plucking and shaping eyebrows, manicuring, shampooing and conditioning hair, and styling hairdos meant primarily for non-black women.

Virtually none of these have anything to do with what African braiders do. In fact, these curricula often teach that the only way to deal with highly textured hair is to use harsh chemicals and tools to straighten it. This is anathema to natural haircare practitioners.

Is it rational to require them to spend time and money taking irrelevant classes and

passing an exam to obtain a license to do something they already knew how to do? It depends.

In Cornwell v. Hamilton, a California federal district court considered the application of the state’s cosmetology licensing laws to JoAnne Cornwell, an entrepreneur who had created a chemical-free way to style tightly textured hair by taking advantage of the hair’s natural tendency to twist and lock on itself.

Cornwell’s company, “Sisterlocks,” not only provided trademarked Sisterlocks styling services but also trained others in the method so they could become certified stylists and entrepreneurs.

Cornwell argued that requiring her to undergo 1,600 hours of training and to pass an exam about irrelevant cosmetology services violated her right to earn an honest living.

Rather than take the state at its word that its interests were legitimate, the Cornwell court, like the 6th Circuit in the casket case, considered each asserted interest and made its own determination.

It agreed that health and safety was a legitimate interest, but it questioned most of the state’s other asserted interests, such as the need to regulate the cosmetology profession.

The court found that these additional interests rested on the assumption that natural haircare fell within the definition of “cosmetology,” an assumption at the very heart of the case. Next, in scrutinizing the licensing scheme to ensure “a congruity between the means employed and the stated end,” the court found that requiring Cornwell to “spend nine months attending a cosmetology school, at a cost of $5,000-$7,000, learning skills, 96% of which [she] will never use” bore no rational basis to a health and safety interest.

Similarly, in Clayton v. Steinagel, a Utah federal district court struck down the application of that state’s cosmetology licensing laws to African hairbraiders.

Then, in an unexpected plot twist, the 8th Circuit Court of Appeals in Niang v. Carroll affirmed a Missouri district court’s decision upholding that state’s cosmetology licensing laws as they applied to hairbraiders.

Whereas the courts in Cornwell and Clayton refused to accept without question the state’s asserted interests or its claims of ends/means fit, the Niang court took a different tack, crafting its own justifications beyond those proffered by the state and then finding them rationally related to the law in question.

I smell a rat

In PLF’s Merrifield v. Lockyer, the owner of a pesticide-free pest removal company challenged a law requiring him to obtain a license to trap rats, mice and pigeons.  

The law exempted pesticide-free removal companies that trapped skunks, opossums, and bats. Plaintiff argued that treating similarly situated non-pesticide companies differently based on the animals they trapped lacked a rational basis.  

The Ninth Circuit Court of Appeals agreed with the state that it had a legitimate interest in health and safety, and that it was therefore rational to require even pesticide-free pest removal companies to obtain a license because they might come into contact with animals that had been exposed to pesticides.  

However, exempting certain animals that, according to the evidence, were more likely to come into contact with pesticides than those not exempt made application of the law irrational.  

In fact, it smelled a lot like economic protectionism, which the court held did not constitute a legitimate state interest. 

Inconsistent application

When it comes to cases challenging economic regulations, you’d be wise to put your money on “government wins.”

But as the cases above demonstrate, sometimes a court will actively engage with the state’s assertions and the evidence in the record, and then the government doesn’t necessarily win.

It’s tempting to say that if you are confused about what rational basis means and how it should be applied, then you understand it better than you think.

The truth is, unless and until the Supreme Court provides lower courts with more guidance on this front, we will continue to see a range of apparently inconsistent decisions that allow legislators and regulators to continue to run roughshod over the right to earn an honest living.

In the meantime, to paraphrase veteran court observer and lawyer-journalist Dahlia Lithwick, any law will be deemed rational so long as it contains some nouns and verbs.