Can the government treat some people differently than others on the basis of sheer favoritism? It seems like an obvious question, but decades' worth of unwarranted judicial deference in constitutional cases have made the answer uncertain. This week, a federal judge gave a rousing negative answer, holding that the Secretary of Health and Human Services could not exempt organizations designated as "religious" by the government from an Affordable Care Act mandate to provide contraceptive coverage without also exempting non-"religious" groups that object to certain contraceptives on the basis of their moral convictions. In refusing to treat the so-called rational basis test--the default standard of review in constitutional cases--as a "rubber stamp" and invalidating a government classification that made "no rational sense," Judge Richard Leon demonstrated the kind of judicial engagement that is necessary to protect all Americans from regulatory favoritism.
In 2012, the Department of Health and Human Services issued under the ACA a "preventive services" mandate requiring employers to provide, through their insurers, employee coverage for FDA-approved contraceptive drugs and devices. In 2013, in response to concerns that the mandate would force religious employers to act against the tenets of their faith, HHS authorized the Health Resources and Services Administration (a section within HHS) to exempt "churches, their integrated auxiliaries, and conventions or associations of churches as well as... the exclusively religious activities of any religious order." HHS reasoned that such entities "are more likely than other employers to employ people of the same faith who share the same objection, and would therefore be less likely than other people to use contraceptive services even if such services were covered."
The HHS exemption did not cover non-profit groups who were not defined as "religious employers," including March for Life, a non-profit anti-abortion organization that only hires individuals who oppose all forms of abortion and believe that certain FDA-approved contraceptives are abortifacients. March for Life brought suit, charging, among other things, that HHS's refusal to extend an exemption to them violated the Fifth Amendment. The Supreme Court has held that the Due Process of Law Clause of the Fifth Amendment, like the Equal Protection Clause of the Fourteenth Amendment, bars discrimination that is not "reasonably related to any proper governmental objective."
As Judge Leon notes, "the practical reality is that regulatory regimes may, and in some cases must, classify persons for one purpose or another." But not just any governmental end will pass constitutional muster--not even under the rational basis test, which applies to laws that neither burden rights deemed "fundamental" by the Supreme Court nor involve "suspect classifications," such as race, gender, or alienage. In Romer v. Evans (1996), for instance, the Supreme Court held that a state constitutional amendment that prohibited all governmental action designed to protect homosexuals against discrimination had no rational relationship to any legitimate governmental end. The Court concluded that the law was not designed to advance a governmental end distinguishable from a bare political desire "to make [homosexuals] unequal to everyone else." As the government may not pass laws solely to burden a disfavored group, neither may it pass laws solely to benefit the politically powerful. In Metropolitan Life Ins. v. Ward (1985), the Court held that the state of Alabama could not discriminate in favor of domestic insurance companies by imposing a substantially lower tax rate on them than it imposed on out-of-state insurance companies. Determining that the state's aim was merely "to promote domestic industry," the Court concluded that the tax preference "constitute[d] the very sort of parochial discrimination that the Equal Protection Clause was intended to prevent."
In evaluating HHS's decision to treat March for Life differently than "religious employers," Judge Leon, citing Romer, sought to determine "the relation between the classification adopted and the object to be attained." HHS's stated aim was the protection of a particular class of people that are less likely than others to use contraceptives. But as Judge Leon pointed out, the entities that are designated as "religious employers" are no more or less likely than anti-abortion advocacy groups like March for Life to use contraceptives. They are, in Judge Leon's words, "not just 'similarly situated,' they are identically situated." To allow the government to treat identically situated groups differently would be to give "rational basis review... all the bite of a rubber stamp" by endorsing an obvious example of "regulatory favoritism." That Judge Leon refused to do: "[The religious employer exemption] sweeps in arbitrary and irrational strokes that simply cannot be countenanced, even under the most deferential of lenses."
While the Supreme Court has never embraced the notion that pure favoritism is a constitutionally legitimate reason to treat similarly situated people differently, it has all too often failed, in rational basis cases, to engage in a genuine effort to determine whether the government is actually seeking a public-spirited end. Some lower courts have done likewise, turning a blind eye towards naked economic protectionism and even going so far as to endorse protectionism as constitutionally legitimate. At a time when federal circuit courts of appeal are divided on the question of whether Americans' right to earn an honest living can be extinguished simply to protect the politically powerful from competition, Judge Leon's recognition that "rational basis review, if it is to have any meaning in the constellation of judicial scrutiny," must entail a genuine search for the truth and that for a judge to "abdicate this search" is to abdicate his or her constitutional duty, is important and instructive. There is no place for regulatory favoritism in our constitutional order--nor for rubber-stamp judicial review.