Same sex marriage, rational basis scrutiny and In Re Estate of Kittenbrink

I was a very young lawyer when I argued and lost In Re Estate of Kittenbrink, 264 N.W.2d 868 (D. Neb. 1978).  In that case, I attacked a statute as being irrational and violative of the Constitution because it discriminated against nephews.

The Nebraska Supreme Court held that despite the testimony of the Chairman of Judiciary Committee that a legislative study had determined that there was no rational basis for distinguishing between a nephew by blood as opposed to a nephew by marriage for Nebraska inheritance tax purposes, and despite the fact the law was therefore changed to treat such persons equally but only after the death of our testator, the challenged distinction “comported with the natural law of kinship.” It was therefore rational at the time. This was so even though our client was extremely close to the decedent and even though the difference in treatment cost our client nearly $155,000.

As I look back at Kittenbrink, and look forward to the Supreme Court’s decisions in the same sex marriage cases, it strikes me that I have never really understood what is and is not a rational basis for legislation. Indeed, I am perplexed that legislation may be rational one moment, but not the next. For those of you who read this blog somewhat regularly, and witness first hand the machinations of my fevered brow, my lack of comprehension probably comes as no surprise. It is, however, more than slightly unsettling to me.



40 responses

  1. If a judge likes the outcome of the law, it has a rational basis. If not, it doesn’t. Stop pretending that we live under anything short of a judicial dictatorship.

  2. Anon.,

    Respectfully, you are dead wrong. I am not pretending. We live in a democratic society where the role of the judiciary remains, after all these years, unclear. Stop pretending that the law is politics by another name. Such an assertion is both facile and untrue, although it is a cheap and easy argument to make. That you are unwilling to grapple with this difficult question, and instead rely upon cynical platitudes, is unworthy of thinking persons such as yourself.

    All the best.


  3. My understanding is that a law is rational if there reasons supporting it that have substantial evidentiary support. In other words, if a legislator acting in good faith after reviewing the evidence/data could come to the conclusion that X is true, the legislator may rely on X as a basis for passing legislation. If the evidence is sufficiently clear that X is not true, it is not rational to rely on X to pass legislation (even if X may conform to the biases of the legislator).

    The harder problem is that, in certain cases, courts have used what some refer to as “rational basis plus” to impose a higher level of scrutiny without being willing to affirmatively state that certain types of classification (e.g. familial, sexual orientation) are subject to this higher level of scrutiny. In rational basis plus, there is no deference to the legislator on disputed factual issues and the court determines whether X is actually true.

  4. Without first looking up the authors to properly credit them, I give you two quotes which, profound in their simplicity, describe that about which you are complaining here (I think):

    (1) “The law is a ass. A idiot.” I think this one to be self-explanatory.

    (2) “Anyone who likes sausage or the law should see neither being made.” To this one, I would add only that it is true WHEREVER law is “being made” — whether legislatively, judicially, or administratively (and if there are any other appropriate words ending in “ly,” please feel free to share them with us here.

  5. Judge, it rather depends on what you mean by politics. Law is a branch of politics, and in the States often electoral politics. However the politics involved are not usually narrowly partisan. The US Constitution was not written as a democratic document, hence the Electoral College, the Senate, and
    each State guaranteed at least one member of the House, and of course the very limited franchise at the making and slavery. The Constitution has become more democratic with time, direct election of Senate and extended franchise. It was intended to restrain the democratic impulse by its rather slow process for accomplishing anything, its structural limits of what fed gov can do, grant of power, its imposition of limits on granted powers, Bill of Rights, and extension of those limitations to State Power primarily in the 14th Amendment. Judicial review clashes with our vision of our political system as democratic yet seems necessary if the written Constitution is to have any defined meaning. The problem is compounded by the difficulty in amending Federal Constitution, State con law is usually different. Now back to politics and law. At least in Con Law the issues debated fall well within the scope of political philosophy, as do legal issues more generally. To equate politics with the dirty the grubby, or the narrowly partisan is unkind narrowing of that fine old word.

  6. Massachusetts:

    Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Restricting marriage to heterosexuals violates state constitution under the rational basis test.


    Kerrigan v. Comm’r of Public Health, 289 Conn. 135, 957 A.2d 407 (Conn. 2008). Quasi-suspect class, therefore heightened or intermediate scrutiny. Under state constitution, restricting marriage to heterosexuals unconstitutional. The majority reasoned that the term “marriage” carries a more important social significance than does civil union, therefore making a distinction is impermissibly discriminatory.

    Take your pick.

    In 2004, when I first read Goodridge, I was surprised by the use of the rational basis test to uphold gay marriage. Given that marriage has always been conceived as between a man and a woman, its hard to argue that limiting marriage to a man and a woman is “irrational.” It seemed to me at the time that using intermediate scrutiny was the more logical way to approach this issue.

    The more that I have considered this question, I now lean towards the reasoning in Goodridge. If a state decides to allow “civil unions” for same sex couples, isn’t it the same thing as “marriage?” And if so, isn’t it then irrational to use different terms for the same thing? It seems to suggest a separate, unequal status to me.

    Both Massachusetts and Connecticut had civil union statutes in place before these two cases were decided. I wonder if the analysis changes, and if so, how, if a state chose not to allow civil union? (I support gay marriage because my conscience tells me that it is wrong to discriminate- but I understand and respect those who take a different position on this issue.)

    Just thinking out loud.

  7. The first issue in any rationality analysis is what is the legislation designed to do. Intestacy rules try to work out a distribution that most would find acceptable, given that the option of a will is available. A preference for blood over relationship is not an unreasonable assumption as a majority preference embodied in a statutory will. To say the preference is more typical does not insult or demean affinity. In the ssm case the first problem is that modern domestic relations law is centrally focused on a reproductive pair, rather it focuses on a formal legal companionship, its consequences, and its end, and children are an occasional but not necessary feature of that relationship, hence the exclusion of same sex couples is not consistent with the purpose and is demeaning to the excluded, and if one is really interested in children there are a variety of child friendly family policies a State may adopt. Add the elements of basic legal relationship, which should be open to all absent good reason, and the irrationality of bar to SSM becomes irrational and not a place for deference to the legislature because of a history of prejudice. Rationality analysis is a legal method not an inflexible definition.

  8. My mistake,

    Massachusetts did not have civil union at the time when Goodridge was issued. The Massachusetts senate apparently asked the SJC is civil union was permissible as a substitute for marriage, and the justices in the majority said no reasoning that the distinction was not justified.

    Connecticut, however, did have civil union available at the time of Kerrigan.

  9. Repenting Lawyer,

    Of course, I agree that intestacy rules are different than marriage rules. However, I was struck by the Nebraska’s Supreme Court assertion that the blood/non-blood distinction between nephews comported with “the natural law of kinship.” A few years ago, the “natural law of marriage” would have required a man and woman. What changed to make that “natural law” irrational? All the best.


  10. I think a rational basis should mean–must mean–a basis on which a rational person could decide an issue. To add “substantial evidence” or some-such muddies the waters and permits wiggle room. Wiggle room is bad.

    The problem that you hint at, judge, is result-oriented jurisprudence. As almost all readers of this blog know, that is when the judge reaches the result that s/he wanted to obtain. The problem in real life is that most of the time I’m sure that judges do not try to reach such a conclusion, and may well be certain that they are not doing so. Yet time after time we see how courts torture logic, ignore significant facts or otherwise depart from strict principles of judicial reasoning. Sometimes that’s because the judges were lazy, or lacking intelligence or thoughtfulness, but I suspect that it is far more often the result of a subtle but overpowering urge to end up with a certain result.

    As a lawyer who represents plaintiffs in employment matters (principally involving discrimination), I see this all the time, because we face summary judgment motions in a majority of our cases. Summary judgment ought to be difficult to obtain, because if there is one fact that could justify a trial, the motion should be denied. That’s a lot like “rational basis”–could a rational juror find for the plaintiff? Yet time after time we see courts weighing evidence (said to be verboten) and making factual decisions in order to clear their dockets by awarding summary judgment. I was fortunate enough to have dinner with a judge on one of the circuits, in the course of which I suggested that the next time I argue a summary-judgment motion, I’m going to say, “Your honor, your function here is not to find facts. It’s to find out if a juror who’s this far [holding fingers very close together] from commitment could hold for the plaintiff.” He smiled, but he didn’t disagree.

    By the way, the cases talk about a “reasonable jury,” but I always speak about a reasonable (or, better, rational) juror–in the singular. I do that, because if you could get one juror thinking a particular way, you could get an entire panel that reaches the same conclusion, and also because I believe that it is easier for a judge to think of an entire jury in a kind of hazy way and think, “Well, one person might believe the plaintiff’s case, but you wouldn’t find a whole jury of twelve (or six, or eight) who would.” In other words, I think the “reasonable jury” can be an excuse for sloppy reasoning and result-oriented jurisprudence.

  11. Repenting Lawyer,

    I agree with the distinction that you make. That, however, is not a distinction recognized by the commentator to whom I was replying. All the best.


  12. Let’s cut to the chase. You’re questioning, via your own Kittenbrink, the 6th Circuit’s less than convincing opinion in DeBoer as it analyzes rational basis — is there in fact a rational basis for excluding same-sex couples from marriage (its legal protections and benefits) such that it advances a legitimate state interest? Sutton even refers specifically to “nature’s laws” and “sexual complemantarity” in his rational basis argument. In short: under Sutton’s argument, states got into the business of regulating marriage to regulate sexual intercourse for procreation purposes. Let’s call this the “what’s love got to do with it” argument.

    The obvious rejoinder to that thinking is, what rational basis is there then to include non-fertile opposite sex couples in the marriage contract? There is none. Which leaves us hanging by a very weak thread: rational basis is what a state claims it to be: states should be able to ban SSM even if they have no idea what harmful consequences, if any, might obtain.

    Posner dismantled this argument in Wisconsin, responding to state’s att’y in orals: “You don’t have any sort of empirical or even conjectural basis for your law. Funny.”

    So, we are left with animus animating the rational basis argument. Dale Carpenter had this to say about that referring to Windsor: “The sometimes far-fetched and hypothesized rationalizations that suffice to sustain a law in ordinary rational-basis cases don’t suffice once animus is detected.”

    Justice Kennedy in Windsor: the government acts on animus when it aims “to disparage and to injure” a person or group of people. “It is the bare desire to harm a politically unpopular group.” Relief comes via the equal protection principles of the Fifth and Fourteenth Amendments, which is why it becomes a constitutional argument.

  13. Judge, I suspect that in the will case the conflation of the customary with the natural is tolerable, but there no natural laws of kinship. The tendency to conflate the familiar with the natural is a standard criticism of natural law theories. What made the “natural law” of marriage unnatural was the ability to control procreation and the rise of deliberately childless marriages, the greater social emphasis on companionship, changes in divorce laws that reflect that best friend model, and the removal of marriage from the sacramental and its shjift to the civil contract, which begins with the Reformation. Add in the diversity of marital and child rearing practices across time and space, and the rise of critical Scripture studies that undermine proof texting from the Bible, and the natural law of a few years ago seems like a lazy failure to think.

  14. MarcosD.,

    Your comment is helpful. The question then really is whether the law is based upon a punitive motivation–and not whether it is rational or irrational. I have applied that analytic against Nebraska to resolve ex post facto arguments in favor of the plaintiffs regarding the “civil” regulation of sex offenders. That the real question is punitive intent rather than rationality makes sense to me.

    All the best.


  15. Jim Gordon’s first quote is from Dickens in Oliver Twist. It is Mr Bumble objecting to the rule tat wives were presumed to act under the control of their husbands. Judges probably saw natural law but Bumble knew Mrs Bumble an early feminist, The natural law there proved to be malleable and Bumble became the model for sit com husbands.
    Second quote is from Bismarcl trying to refute the view that from nature Germans have no sense of humor.

  16. RGK,
    I’ve taken a class in constitutional law, federal courts and family law. I also spent 30-45 minutes puzzling over your post and looking up various cases on it (mostly looking at Scalia’s views on equal protection)

    I still don’t have a damn clue what a rational basis is. Or how I would decide a case under a rational basis test!

  17. MarcosD,

    Once again, very helpful and, to me, convincing.

    By the way, here is the sex offender case that I mentioned in regard to punitive intent and ex post facto laws dealing with sex offenders that are claimed to be only civil and regulatory in nature. Doe v. Nebraska, 898 F. Supp.2d 1086, 1124-1127 (D. Neb. 2012). No appeal was taken from my finding that punitive intent was shown, the statutes were in fact punitive and the laws were unconstitutional as a result.

    All the best.


  18. SLS,

    For what is worth, I detest the “level of scrutiny” construct (rational, intermediate, heightened, strict, etc.,) because it befuddles me.

    Poor you and me! All the best.


  19. Scalia’s views, to paraphrase Sotomeyer, tend to elevate his own personal feelings and experiences over other people’s.

  20. Opening your finding with a Holmes paraphrase: “if the people of Nebraska wanted to go to hell, it was my job to help them get there…” is something I will, with your permission, trot out from time to time. I am enjoying your writing in this opinion, Judge.

  21. I should add that the smart ass has been blamed on attendance art a Jesuit high school. Scalia had a like experience. If NYC was anything like Big O in the 50s, his attitude on this issue may be the residue of jokes made by the male students at public high schools about the absent of young ladies at his school and what that showed about his sexual orientation Wonder why Sutton got involved with theology of the body?

  22. I don’t think it has to have “substantial” evidentiary support, merely some support. The straight face test comes to mind.

  23. Law is not politics, but what American judges do looks more like tyranny than law.

    Why should I be satisfied with a different outcome than my neighbor down the street got on the same set of facts last week? Whatever happened to equal justice under law?

    What constitutional provision gives the Supreme Court authority to ration justice and refuse to correct obvious errors?

    If a judge doesn’t have to follow precedent or justify his/her decision, what should I call it? It can’t be called “law.”

  24. Perhaps the distinction is related to the use of the term “civil union” as opposed to the term “marriage” when both encompass the same relationship. That is, why have the distinction at all?

    Maybe the rational relationship test is the wrong test if a state does not have civil union. Maybe then a court needs to consider same sex marriage under the rubric of heightened scrutiny.

  25. Times change. From my (gender) standpoint, I’m glad what’s “rational” changes with the times. Imagine life without Title VII. Change is good.

  26. MarcosD:

    You take the tiny percentage of opposite sex married couples that can’t have children and then build your entire political argument around it.

    Try this for a rational reason. The government wants to encourage opposite sex couples to have children because it is the cheapest and only non-medical interventional way to propagate the human race.

    Check out the demographic death spiral in Russia, Italy and Japan.

    It is a fact of life, nature and science (my particular favorite) that two women and two men – by themselves – cannot create human life.

    I should add that I am Catholic and went to Creighton. Feel free to personally attack my Jesuit education. Essentially the same one Justices Thomas and Scalia earned.

  27. I think, he is half right. Where there is actually a rational purpose to a law, no reasonable court strikes it down as irrational – to contend otherwise is cynical. But, when there is no easily discernible rational purpose, courts seem to save or rescue the law by inventing one, depending largely on the whim of the bench.I wouldn’t call it political, just arbitrary since there is no standard. It would be nice if the standard was – if a reasonable person would find it rational – but now the standard is if any person however irrational would find it rational.

  28. Anon. You’re saying that if SSM is legal, then hetero couples will have fewer babies and evidence for this is to be found in Russia, Italy and Japan.

    I wouldn’t want to walk into court with that argument if I were you.

  29. The US Constitution “was intended to restrain the democratic impulse by its rather slow process for accomplishing anything,”

    That’s a rather ahistorical view. If the Congress represents the democratic impulse, then, yes, that impulse was restrained. But so was the Senate, and so was the Executive, and so was the Judiciary. But the US was founded on anti-royalist, anti-aristocratic ideals. Democratic ideals. Americans at the time distinguished between aristocratic republics and democratic republics, and considered the states and the US to be democratic republics.

  30. I’ve been practicing exclusively constitutional law for 15 years, mostly rational basis cases. I think about this question a LOT. (I’ve even written a book about it: My conclusion is that the term “rational basis test” is used to describe a variety of different standards of review, involving significantly (which is to say potentially dispositive) levels of scrutiny. I would say the most important question is whether the standard being applied (regardless of how denominated) involves a genuinely truth-seeking process. If the answer is yes, then the standard is some form of “heightened scrutiny” (strict, intermediate, rational basis with bite); if the answer is no, then it’s a true rational basis case. Simply put, the rational basis test was invented to enable — that’s enable, not require — the judiciary to turn a blind eye when government pursues certain unconstitutional ends, including animus, political favoritism, or economic protectionism. There are many reasons why judges may wish to shirk their duty in such cases, such as avoiding intra-branch conflict in areas of doctrinal uncertainty (e.g., property rights and economic liberty, whose constitutional status remains foggy since the New Deal). The giveaway is when you see judges asking whether a statute has a “conceivably” rational basis, as opposed to an “actually” rational basis, which is the question judges ask when applying any form of heightened scrutiny.

  31. What is remarkable is that the Supreme Court has actually never set forth criteria for determining what qualifies as a legitimate state interest– which makes it very difficult to determine whether a given act of government is reasonably related to one! Justice Scalia notes this in Nollan v. California Coastal Commission, 483 U.S. 825, 835 (1987), almost in passing– but it really is a remarkable fact. It has said that certain interests do not qualify– hostility towards particular groups isn’t enough, for instance– but beyond that, it is difficult to say. Which makes it seem like there is picking and choosing going on when a purported interest is said to be illegitimate.

    But I do think it makes sense to say that something can be rational at point A and then irrational at point B, so long as we’re relying on a concept of rationality that’s not shot through with epistemological skepticism (and I think the legal enterprise implicitly depends upon the correspondence between the reality of the external world and the evidence available to the senses– thus FRE 102 refers to “the end of ascertaining the truth”). Given the facts and the evidence in the record at point A, does this piece of legislation actually further a legitimate end of government? If the answer is yes, that’s that. If circumstances change (and Carolene Products actually contemplates this), then we revise our assessment. That’s not to say it’s easy in any given case to determine whether something that may have been taken for granted for decades no longer rests on a solid constitutional foundation.

  32. If only that were so. The Supreme Court has actually said that no evidentiary support whatsoever is required in rational basis cases– the “conceivable state of facts” test presumes the existence of facts supporting legislative judgments. If substantial evidence was required, we’d have a rational basis status quo that would be a lot more, well, rational.

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