Last week, a gay couple in Florida won the right to adopt the two boys they had fostered for the past four years.
It was a huge win for the Gill-Roe family, but it was also a legal win for LGBT people across the country. In her decision, Justice Lederman of the Eleventh Circuit determined that the ban on adoptions by LGBT individuals had no rational basis. It may seem like an obvious conclusion, but the legal hurdles to finding no rational basis are considerable.
In English, the phrase rational basis makes sense -- of course we want a government to ensure that all legislative actions are clearly linked to legislative aims. It helps if governments create a logical link between the laws they pass and the effect they are supposed to have.
But under the law, "rational basis" has a very different meaning and a pretty shameful history.
The equal protection clause in the Fourteenth Amendment, included in similar form in State constitutions, prohibits disparate legal treatment of individuals similarly situated. Challenged laws that distinguish between individuals or groups based on race are subject to strict scrutiny by the courts and are rarely upheld.
Laws that distinguish between the sexes are subject to a lesser, "intermediate" scrutiny and so courts sometimes find that the distinction is justified.
For everyone else, the court must simply find a rational basis for the legal distinction between two similarly situated groups in order to uphold a challenged law.
Formally explained, rational basis review requires the challenged legal distinction to, "bear a rational relationship to an independent and legitimate legislative end." (that's according to the U.S. Supreme Court in Romer v. Evans ).
At certain times, courts have used this language to create a fairly useful test. In 1985, the Supreme Court found that the motive for distinguishing between two groups can't just be prejudice or the desire to harm. If reasons that are obviously false are offered to justify the discrimination, the court should ignore them. As well, according to the Kansas Supreme Court, simple moral objections are not the same as a rational basis.
But the essence of rational basis is that an explanation, any explanation for the discrimination can be used to uphold the challenged law. Laws are presumed constitutional and the onus is on the Plaintiff to disprove every conceivable justification for the discriminatory regulation.
In Florida, this kind of reasoning permitted the Eleventh Circuit to conclude that in 2004 there was not sufficient evidence to disprove the claims that homosexuals are not as capable as heterosexuals at guiding children during their sexual development and homosexuals are less able to create stable home environments. This, after more than one generation of openly gay families in the United States and the state sanctioned existence of homosexual families in many other countries (including Israel, Canada and Norway).
Despite the brave and compelling reasons of Justice Lederman last week, rational basis offers very little protection for LGBTQ people.
Equal protection in both the Federal Constitution and State Constitutions may well have been originally conceived as a shield against racism. But discrimination in the law is not reserved for race alone. This past month, especially, has illustrated that LGBT people are a cognizable group that are systematically excluded from aspects of public life (marriage is a good example). It would be legally consistent as well as potentially logically mandated to extend strict scrutiny under the equal protection clause to the LGBT community. In fact, the California Supreme Court has already released one decision supporting strict scrutiny for LGBT people.
Until equal protection is applied vigorously to all legal discrimination, we rely on robust interpretations of rational basis and hope that the more judges follow the lead of the California court and Justice Lederman.
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