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.



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