Continuing from the last post, here’s a test case for the view that judges applying the “rational basis” must defer completely to referenda.
Suppose the voters of California pass a referendum instituting a state agency which employed people to pray to Jesus for the health of sick Californians. Can a judge declare this a 1st amendment violation, or not? Surely prolonging the lives of thousands of citizens constitutes a legitimate state interest, and, per Kennedy’s opinion in the last post, it is not the government’s responsibility to provide evidence that the referendum would aid that interest, nor the judge’s responsibility to consider such evidence. On what basis could the referendum be unconstitutional?
Actually, looking this up, it seems that a law violating the Establishment Clause triggers (at least sometimes) “strict scrutiny,” a more stringent requirement than “rational basis.” I expect the referendum above would be axed on that basis. Racially discriminatory laws have to pass strict scrutiny as well. But discrimination against gays triggers only the weaker rational basis test.
Justice O’Connor wrote in her concurrence in Lawrence v. Texas that Texas’s law forbidding same-sex sodomy failed the rational basis test, because it was motivated solely by moral disapproval, rather than by a legitimate state interest.” (By the way, O’Connor writes in the same opinion that “preserving the traditional institution of marriage” is a legitimate state interest.)
Question: Suppose the lawyers for Texas had argued, without providing any evidence, that the state felt same-sex sodomy was more likely than opposite-sex sodomy to promote unspecified disease. Would the law have still been held unconstitutional? Or would it have met the rational basis standard?