Washington Law Review


Although it purports to be a single standard, equal protection’s rational-basis review has two faces that use different methods and produce conflicting results. The United States Supreme Court employs both versions but does not acknowledge that a conflict exists between them. Without an explicit acknowledgment of the contradictory nature of the two rationality reviews, it follows that the Court has made no effort to explain in what context one version should be used and in what context the other is appropriate. As a result, it is very difficult to predict with accuracy the outcome of arguments based on equal protection’s rational-basis review in the lower courts because no matter which side a court picks, it can find U.S. Supreme Court precedents to support the result. In recent years, this problem of unpredictability has been particularly acute in cases challenging laws that disadvantage persons involved in same-sex relationships. Because rational-basis review is ordinarily deferential to legislative judgment, these challenges usually fail. There is, however, a core of successful rational-basis claims that involve a more demanding scrutiny and seem to contradict the results in the more typical cases. This creates unpredictability. This Article examines this duality in three factual settings: (1) state laws that define marriage as limited to a man and a woman, (2) the United States military’s policy of excluding gays and lesbians from military service, and (3) the federal Defense of Marriage Act, which limits federal recognition of marriage to opposite-sex couples.

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