Con Law: Rational Basis Scrutiny with Bite Forum

[blong4133]

When we were going over the different levels of scrutiny, my professor mentioned a hybrid category that is kind of between Intermediate scrutiny and rational basis scrutiny. However, I did not write down what he actually said about it. (We didn't spend much time on it).

Can someone give me a brief definition of Rational Basis with Bite?

[artemish85]

Use RBWB when one would normally use RB, but there are factors present that require a higher scrutiny; like animus, indicia of suspectness, or an important right affected. The difference from RB is that RBWB does not allow over/under-inclusiveness and the burden of proof is shifted to the defendant/government. See: Cleburne, Moreno, Romer, Goodrige, Cal Gay Marriage Cases.

[Flanker1067]

Use RBWB when one would normally use RB, but there are factors present that require a higher scrutiny; like animus, indicia of suspectness, or an important right affected. The difference from RB is that RBWB does not allow over/under-inclusiveness and the burden of proof is shifted to the defendant/government. See: Cleburne, Moreno, Romer, Goodrige, Cal Gay Marriage Cases.

Just be careful, RBWB is not really recognized precedent. Add: By "not really," I mean it's not, and it's never required, but as Artemish pointed out, there are enough cases doing so where it's OK.

[blong4133]

Thanks you two. I remember that we really only discussed it within the context of gay rights, but I do remember now. Thanks!

[jackattack17]

yeah, Lawrence was also probably RBWB, even though the court didnt say which level of scrutiny they were applying. basically if it's a law that's discriminating on the basis of animus toward a politically unpopular class (like artemish said). and yes, like flanker said, it's not official precedent. it's just that in a few instances (the ones mentioned), the court explicitly or implicitly applied rational basis, but struck down laws even though they had even the barest "legitimate govt interests" b/c the interests were just animus.

[blong4133]

yeah, Lawrence was also probably RBWB, even though the court didnt say which level of scrutiny they were applying. basically if it's a law that's discriminating on the basis of animus toward a politically unpopular class (like artemish said). and yes, like flanker said, it's not official precedent. it's just that in a few instances (the ones mentioned), the court explicitly or implicitly applied rational basis, but struck down laws even though they had even the barest "legitimate govt interests" b/c the interests were just animus.

right. The reason I asked is because I wrote RBWB in my notes but nothing after that, and I couldn't find anything in my text or the supplement that mentioned it. All I could remember is that it is rarely used and is somewhere in between Intermediate Scrutiny and Rational Basis.

But thanks again for the feedback. I appreciate it!