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Several months ago, concerning the Court's grant of
cert in Fitzgerald v. Racing Ass'n (Iowa Supreme Court holding that Iowa
violated EPC by treating riverboats more favorably than racetracks), I
asked: "Anyone have any
thoughts/predictions on whether the Court granted cert. today merely in order to
perform error-correction, and to stop this surprising revivial of searching
rational-basis review, or whether instead we're witnessing the dawn of a new era
of 'rational basis with teeth' (cf. Romer; Breyer's dissent in Eldred; some of
the arguments we've discussed that would support reversal in
Lawrence)?"
The Court's unanimous answer today: The
former. See http://scotus.ap.org/scotus/02-695p.zo.pdf.
Prof. Wolff's prediction of a decision in Lawrence on the same day was off --
we'll have to wait at least a week to see whether his predicted
juxtaposition of the two cases was correct.
----- Original Message -----
Sent: Friday, January 17, 2003 6:35
PM
Subject: Re: Williamson v. Lee Optical
Redux?
When will state supreme courts learn to start basing these
decisions on their State Constitutions?
I'll go out on a limb and
hazard the guess that the Court will hand this decision down on the same day
that it gives us Lawrence v. Texas. It will reverse both, using Lawrence
to inch closer to the conclusion that discrimination against gay men and
lesbians must satisfy a heightened form of review, while using Fitzgerald to
reaffirm that government is entitled to almost unreviewable discretion in
drawing distinctions among different economic actors, provided that it does
not single out politically vulnerable minorities for unfavorable
treatment.
-- T
At 02:55 PM 1/17/2003 -0500, you wrote:
The Court granted cert. this
afternoon in Fitzgerald v. Racing Ass'n of Central Iowa, in which the Iowa
Supreme Court held that the equal protection clause was violated by a
statute that significantly increased a wagering tax on racetracks but not on
riverboats. The state court concluded (648 NW2d at 561) that "[t]here can be no rational reason for this
differential tax, unless the reason for it was to drive the racetracks out
of business, thereby helping the riverboat industry. Unless we recognize the
desire to discriminately tax one business for the purpose of supporting
another similarly situated business as a legitimate government interest, we
can find no other basis for upholding this law." The court also went
on to say (id. at 561-62): "The State appears to suggest a
reason for the tax is the pure fact that the market will allow it--that the
racetracks can bear a higher tax than the riverboats. Even if this is true,
it is not a rational basis for upholding the discriminatory tax. Though
revenue production may be a legitimate state interest, this goal is not
rationally served by a taxing scheme that discriminates against certain slot
machines simply because of their geography. '[A] revenue measure based on
gross receipts must apply equally to all for the privilege of doing the same
act.' [citing a 1964 Florida case]."
You may recall that we
recently discussed a decision of the CTA6 (Craigmiles v. Giles) holding that
a Tennessee statute prohibiting the sale of caskets by anyone not licensed
as funeral director violated due process and equal protection because there
was no rational basis for the classification.
Anyone have any
thoughts/predictions on whether the Court granted cert. today merely in
order to perform error-correction, and to stop this surprising revivial of
searching rational-basis review, or whether instead we're witnessing the
dawn of a new era of "rational basis with teeth" (cf. Romer; Breyer's
dissent in Eldred; some of the arguments we've discussed that would support
reversal in Lawrence)?
Marty
Lederman
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