Rational basis review

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Part of the series on
U.S. Discrimination Law
Standards of Review

Rational basis review
Intermediate scrutiny
Strict scrutiny

Other Legal Theories

Substantive due process
State action doctrine

Defining Moments in Law

The 14th Amendment
Plessy v. Ferguson
Brown v. Board of Education
Loving v. Virginia
U.S. v. Virginia
Romer v. Evans
Lawrence v. Texas

Modalities of Constitutional Law


Basic Doctrine

Rational basis review is the standard of constitutional review that the judiciary uses to evaluate a legislative classification which does not involve any suspect classifications. Currently, the only "suspect classifications" are race,[1] religion,[2] national origin,[3] and gender.[4] Sexual orientation has been given a quasi-suspect classification.[5]

The doctrine of "rational basis review" suggests that where a government classification, which adversely affects one group, involves no suspect classification against a "discrete & insular minority",[6] supports a legitimate state interest, and is reasonably related to that legitimate interest, the classification passes constitutional muster.[7] Even a state interest that is pretextual will be accepted; this standard of review is very light, and deferential to the state.

Rational basis classifications are largely economic, implicating only the government's police powers. The distinction between "filled" milk and real milk,[8] is an example of a rational basis classification.

Current Events

There is currently some doctrinal confusion on the application of rational basis review to classifications on the basis of sexual orientation. The cases Romer v. Evans and Lawrence v. Texas both appear to apply rational basis review in rejecting classifications on the basis of sexual orientation; they base their decisions on the grounds that the enforcement of neither animus nor morality can be a legitimate state interest. However, such a momentous holding suggests that the real standard of review being applied is something higher than rational basis, because disallowing morality as a rational basis would be potentially too far for the current moderate Court. As a result, it is likely that the Court is using something higher than "rational basis" in evaluating discrimination against homosexuals, but that the Court does not wish to say as much. The standard of review for sexual orientation cases, then, has been mockingly called "rational basis with teeth," making light of the Court's current confusion.


  1. Brown v. Board of Education
  2. Yick Wo v. Hopkins (118 U.S. 356)
  3. Korematsu v. U.S. (323 U.S. 214)
  4. U.S. v. Virginia, applying intermediate scrutiny
  5. Romer v. Evans, see also Lawrence v. Texas
  6. U.S. v. Carolene Products, 304 U.S. 144, footnote 4
  7. U.S. v. Carolene Products, 304 U.S. 144
  8. See Carolene Products, supra