June 18, 2005
by Guest Contributor
June 18, 2005 12:16 PM
[Jed Sorokin-Altmann] There's an interesting post over at Crime & Federalism about Louisiana's licenses for florists. Apparently there is an hour-long written test and a 3 hour performance test. The constitutionality of the licensing was challenged, but a court upheld it under the rational basis test. Which brings me to why I posted this--there was a great quote from this that I enjoyed:
As Clint Bolick is fond of saying, you only need to know two things about the rational basis test: it doesn’t need to be rational, and it doesn’t need to be the basis.
Cute and oft-quoted remark by Bolick, but it misses the point of the federal deference: there needs to be a rational basis for the law. It does not have to be the basis that the legislators had in mind.
When isn't there a rational basis, though? Seems sufficiently broad to cover nearly anything, unless the legislators really did lose their marbles....
I don't know if you'd consider this to have been an instance of the legislators' losing their marbles:
The SCOTUS majority in Romer v. Evans seemed to think that the people of Colorado, in mandating that sexual orientation not be a basis for legal protection against discrimination, lacked a rational basis. Hence "animus" as an impermissible rationale was born. (This case also brought us Scalia's "Why shouldn't the people of CO express their disgust of homosexuals through a referendum that bars giving them legal protection?")