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?
Quomodocumque 
Well, I don’t think this is official precedent in applying rational basis (also I Am Not A Lawyer), but I’d think a necessary condition to apply a belief unsupported by evidence would be that a reasonable person could hold that belief. Which, unfortunately but unsurprisingly, would probably be true for the idea that homosexual sex is more likely to spread disease. On the other hand, a claim that, let’s say, homosexual sodomy was a direct cause of hurricanes hitting Houston would probably not be considered a “rational basis,” because it is not in fact rational. (At least I hope the Court wouldn’t consider that “rational!”)
That said, rational basis per se is virtually never used to strike down a law; what O’Connor implicitly uses is “rational basis with a bite,” which is essentially an ad-hoc and informal category for when the state doesn’t really have a strong enough interest to justify discrimination, but the Court doesn’t want to set a precedent that would call for strict scrutiny in similar cases.
But the Court’s opinion in Lawrence v. Texas was, of course, written by Justice Kennedy (and joined by enough Justices to make a majority even without O’Connor), and he didn’t outright state what level of scrutiny he was applying. The consensus seems to be that questions about discrimination based on sexual orientation, like those about gender discrimination, “ought to be” considered under intermediate scrutiny, which is of course intermediate between strict scrutiny and rational-basis. (It’s also pretty nebulously defined, but it’s safe to say that without some real evidence that the state has a strong interest at stake, a law can’t pass intermediate scrutiny.) But there’s a circuit split, I believe, on whether this is what Kennedy actually applied.
By the way, Establishment Clause violations are also just about the only case in which the Court allows taxpayer standing. So not only would a California Office of Omnipotent Relations have to pass strict scrutiny (which it wouldn’t; the government has a compelling interest in protecting its citizens, but prayer is just about the opposite of “narrowly tailored”), but any California citizen could sue to have it overturned. More interesting, I think, would be the following, um, “hypothetical” scenario:
Suppose that Massachusetts’ state-run health-insurance program covered alternative medical treatments, like homeopathy. The state could probably find evidence claiming that homeopathy is effective, but the vast preponderance of evidence would of course support the assertion that it isn’t (beyond the placebo effect.) Then there are several questions that arise:
1. What level of scrutiny would the law have to pass in order to be constitutional?
1a. Assuming it’s the rational basis test, does the state have a rational basis in passing the law? (I suspect the answer would be found to be “yes.”)
1b. Assuming it’s strict scrutiny, and granting that Mass. has a compelling interest in healthy citizens, is paying for homeopathic remedies “narrowly tailored?” (Less likely to translate across an analogy, but interesting anyway)
2. Who, if anyone, would have standing to challenge the law in court?
2a. Would taxpayers have standing if, in addition to homeopathic medicine, the Mass health-insurance plan covered (something essentially the same as) faith healing?
3. Suppose the law were overturned; or that the insurance plan never covered homeopathy. (I don’t know if it does or not.) Would a Mass. citizen have standing to sue, claiming that his rights were violated by the state not covering homeopathy? If so, does he have a case?
IANAL either, but it seems to me that taxpayer standing can be pretty limited these days: in Hein v. Freedom From Religion Foundation (2007) the Supreme Court ruled against taxpayer standing for challenging the $2+ billion/year White House Office of Faith-Based and Community Initiatives because it was created by the executive branch rather than Congress. (The majority opinions even acknowledged that this could create clear establishment clause violations with no judicial remedy, but claimed that it was the legislature’s job to correct them. I’m sure Congress will get around to fixing this one any day now.)
It seems then that if you replaced the referendum with an executive act by Governor Schwarzenegger, there might be no one with standing to sue (at least not under the federal constitution). On the other hand, maybe a sick Californian who was prayed for by the program but did not miraculously get better might have standing, though its not as obvious as in the same-sex marriage case in which a couple could just apply for a marriage license and be denied.
There are already health insurers who cover acupuncture, and it wouldn’t surprise me if there are some in places like Massachusetts with government subsidies to private health insurance. Thirty seconds of googling didn’t turn up any court cases yet though. (On the other hand, even if acupuncture isn’t more effective than placebo acupuncture, perhaps it should be covered anyway if it’s a really effective placebo.)