Can 50 Million Frenchmen Be Irrational?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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12 Responses

  1. “In my opinion, these courts applied heightened scrutiny even as they said that they were applying rational basis.”

    Huh. Usually it goes the other way.

    Anyway, any provision that’s going to eventually catch on, has to start in one, or a handful of states. Is public opinion only allowed to ‘evolve’ in directions the courts will permit?

  2. My understanding of Roemer/Lawrence is that it is actually the “legitimacy” of the state interest that is doing the work. The state must articulate a “legitimate” state interest, and bare moral disapproval is not enough: some reason must be articulated. Of course, there might be reasons, but not all the reasons that could be given are palatable to the states and/or their lawyers. I’d be interested in knowing what state interest you believe is legitimate.

  3. Gerard Magliocca says:


    It seems to me that a genuine rational basis review would be satisfied by saying that marriage has been defined in heterosexual terms for a really long time and that the the state wants to preserve this tradition. This explanation, of course, does not work if heightened scrutiny is involved (e.g. Loving).

    I should add that my post presupposes tiered review rather than a general reasonableness standard for equal protection as Justice Stevens advocated. Under the latter approach, you could say that a prohibition on same-sex marriage is not adequately justified. Nevertheless, my question still stands about when such a widespread social practice has ever been invalidated as irrational.

  4. Poster says:

    “Has there ever been a policy enacted by Congress and by the overwhelming majority of the states that was held unconstitutional because it lacked a rational basis? I’m sure that the answer is no (though if there is an example, I’d like to hear about it).”

    This isn’t the right question.

    What about rulings that analyzed laws grounded in simple racial animus or blatant sexism? Even if they were invalidated (or not!) using heightened scrutiny, COULD they have been invalidated using rational basis? Many of these were rooted in irrational animus, bias and stereotypes.

  5. Joe says:

    “It seems to me that a genuine rational basis review would be satisfied by saying that marriage has been defined in heterosexual terms for a really long time and that the the state wants to preserve this tradition.”

    I second the comment as to legitimate state interest. This tradition rationale would in effect lock in place laws based on mere animus. The SC held that all laws have to pass minimal standards, and that violates one of them, even if the animus was around for a long long time.

  6. Marc DeGirolami says:

    If one believes, as I think Judge Walker does (based on what he says in his decision), that the fact that a tradition is both widespread and ancient says nothing, of itself, about the tradition’s rationality, then I’m not sure what the problem is. Maybe the way that the rational basis test was administered in the past is the real problem. That is, Judge Walker may well have been trying to alter the rational basis test to something more purely — philosophically — rationalistic. To satisfy the rationalist test, one would first need to show that one had disencumbered oneself of preconceptions and mere opinion and start justifying, each time, afresh.

  7. Gerard Magliocca says:

    Rooting out “animus” is what heightened scrutiny is all about. That’s why this should be analyzed under that standard if you think that animus is involved.

  8. SueSimp says:

    Yeah, there’s some heightened level of scrutiny going on, but it doesn’t have to result entirely from the class of people involved. Marriage has been found to be a fundamental right, which itself can necessitate heightened scrutiny. Combine a fundamental right with denial of that right to narrow class of people who have traditionally been discriminated against, and it seems like rational basis review is an inappropriate standard.

    Fundamental right + quasi-suspect class = Rational compelling basis test?

    Plus, the pro-Prop 8 litigants did a really horrible job of explaining why marriage only confers policy benefits when applied to straight couples, or explaining why, even assuming marriage only promotes policy when applied to straights, refusing to apply it to gay couples is the least restrictive means available for deciding who gets access to marriage and who does not.

  9. Jason Mazzone says:

    I don’t see how saying that the state wants to preserve the law (or as you put it, the tradition) articulates an interest under rational review. Surely the interest in having a law has to be distinct from the law itself.

  10. Gerard Magliocca says:

    So the answer so far is, “No. There is no precedent for declaring a legal policy embraced by Congress and by more than three-fourths of the states irrational as a constitutional matter.”

    It’s just food for thought.

  11. Jackson Pollack says:

    I can think of a better formulation than tradition: (1) traditional marriage laws focus on heterosexual couples because heterosexuals often have children by accident, and marriage is a social institution that the government subsidizes to ensure the stable upbringing of children; and (2) if the institution is to be extended to gays and lesbians, regardless of the terminology, it should be done through the legislative process or a ballot initiative.

  12. For what reason would sexual orientation be a suspect class?

    Because of criteria they fit now?

    Or because of criteria that they fit in 1868?