Ordinary and Enhanced Rational Basis Review in the Massachusetts Supreme Judicial Court: A Preliminary Investigation

Article excerpt

I. INTRODUCTION

In its 2003 decision in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court held that the denial of marriage licenses to same-sex couples violates the state constitutional commitment to equality. (1) The ruling engendered no end of criticism, much of which focused on the court's conclusion that the civil marriage prohibition could not survive rational basis review, a standard of judicial scrutiny that encourages judicial deference toward the policy choices of the political branches of government. (2) Critics charged that the court was not applying rational basis review at all, but rather an undefined standard a good deal stricter. (3) Justice Sosman, writing in dissent, stated that the Goodridge majority had "tortured the rational basis test beyond recognition," and she expressed the hope that in the future the court would "return to the rational basis test as it has always been understood and applied." (4)

A review of equal protection cases from the past century suggests that Justice Sosman's hope is premised upon a mistaken impression of the nature of rational basis scrutiny under the Massachusetts Constitution. In fact, the Massachusetts Supreme Judicial Court has long applied at least two kinds of rational basis scrutiny to government action: ordinary, deferential rational basis scrutiny in the mine run of cases, and an enhanced rational basis scrutiny when the government action in question implicates or restricts certain important personal interests. This Article examines the cases in which the Massachusetts Supreme Judicial Court has applied enhanced rational basis scrutiny, as well as those cases in which the court has limited the circumstances in which such scrutiny is available. The goal is descriptive, to trace the origins of the Goodridge court's analytical framework in an effort to determine whether the decision should be regarded as an eccentric application of rational basis review or, as seems to be the case, merely the latest in a long line of cases in which the court has examined regulation more critically within the context of what we today call rational basis scrutiny. (5)

II. RATIONAL BASIS SCRUTINY: ORDINARY VERSUS ENHANCED

Rational basis scrutiny is ordinarily understood as exceedingly deferential to the political branches of government. Though the provisions of the Massachusetts Declaration of Rights express the commitment to equality differently than the Equal Protection Clause of the Fourteenth Amendment, (6) the Massachusetts courts have traditionally applied the federal equal protection framework when addressing claims raised under the state constitution. (7) Pursuant to that framework, government action that affects a fundamental interest or creates a suspect classification will receive the strictest scrutiny from the courts. Fundamental interests recognized under the Massachusetts Constitution include the right to decide for one's self whether to have a child, (8) how to raise children, (9) and whether to accept medical treatment. (10) Suspect classifications under the Massachusetts Constitution include those based upon race, alienage, nationality, religion, (11) and sex. (12)

In contrast, government action that does not affect a fundamental interest or a suspect classification will be analyzed under rational basis scrutiny. A legislative classification will survive rational basis review if it promotes a legitimate state interest through means that are not wholly irrational or arbitrary. (13) Applying this standard--the ordinary form of rational basis review--the court will uphold a regulation that "'rationally furthers some legitimate, articulated state purpose,'" (14) and a plaintiff will prevail only upon a demonstration that the regulation at issue is arbitrary, irrational, or capricious. (15)

In certain cases, however, the Massachusetts courts have applied enhanced rational basis scrutiny when entertaining an equal protection challenge to a regulation, notwithstanding that the law does not implicate either a fundamental interest or a suspect classification. …