The default and lowest standard of review for constitutional questions in the US is "rational basis review". Higher standards are required, if fundamental rights or suspect classifications are at issue. As Cornell summarizes the situation, "to pass rational basis review, the challenged law must be rationally related to a legitimate government interest". Assuming a law which is not subject to higher review, it could fail rational basis review if the identified government interest is not legitimate (the cases of interest here), or if the interest is legitimate but the law is not rationally related to that interest.

An example of upholding a "legitimate government interest" is Christian Legal Society Chapter v. Martinez, where a UC anti-discrimination requirement was objected to on First Amendment grounds, and the court rejected that argument, finding that "The all-comers policy is a reasonable, viewpoint-neutral condition on access to the RSO forum; it therefore does not transgress First Amendment limitations" – the court found the university's policy to be rational, indeed "creditworthy".

My question is, has any ostensive government interest ever been found by a court to be illegitimate? The test would be a case not involving triggers for higher review, where the law was overturned, and the failure was because the interest was deemed to be illegitimate (not because the law isn't rationally related to the interest).

I specifically want to exclude any cases where the matter does involve suspect classifications or fundamental rights, but where the court employs a rhetorical flourish and says "This wouldn't even pass rational review", or otherwise declines to focus primarily on existing triggers of higher-level review. An example of a kind of case that doesn't clarify the matter is St. Joseph Abbey v. Castille, 712 F.3d 215. Although the court concludes "The funeral directors have offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none", the ruling also starts by saying

The district court enjoined their enforcement, finding that they deny equal protection and due process of law. We will AFFIRM the judgment of the district court.

They do not say that the interest is illegitimate. (My underlying hypothesis is that there are no cases of low-review where a government interest is held to be illegitimate, implying that all government interests are legitimate).

The case of US v. Morrison adds a complication to the question. In that case (cited in this answer), a law granting federal civil remedy to victims of gender-motivated violence was struck down. The original belief of Congress was that the law would be allowed under the Commerce Clause and the 14th Amendment. The court in its opinion set forth a fundamental constitutional limit on what the federal government can do:

Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” Marbury v. Madison

The court did not go any further in pointing to a specific clause in the Constitution (e.g. the 10th Amendment). Likewise in Marbury v. Madison, the constitutional limit on government is captured in the statement

The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

The Morrison court then rejected the claim that there is such constitutional authority. This puts the case into the "strict scrutiny" basket. Similarly, in US v. Lopez, an anti-gun law (ostensively authorized by the Commerce Clause) was overturned because "The Act exceeds Congress' Commerce Clause authority", and accepting the government's position "would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States" – a 10th Amendment issue.

The complication then is that a court has available a tool for upping the level of scrutiny, if it can be found that there is no constitutional authority for a particular law. The concept of "legitimate interest" could then be dispensed with entirely (although it certainly does exist in the case law, in the affirmative but apparently not in the negative).

An observed in Wes Sayeed's answer, one prong of rational basis analysis is whether a law exceeds authority, and a lesser question (the one I focus on) is

Whether or not there is an articulatable need for the law to exist (the Congress/Legislature does not have to justify its reasons for a law but it usually does, and that reason is presumed valid regardless of how it's contrived).

I am looking for evidence that this lesser prong actually exists, and distinguishes possible vs. impossible laws. Or, is every case of "not a legitimate government interest" elevated to the status "not a constitutionally-granted power"? Even more briefly, is "legitimate interest" just another way of saying "constitutional power"? J. Stevens concurring in NY Bd. of Elections v. Lopez Torres states that

as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: “The Constitution does not prohibit legislatures from enacting stupid laws.”

I have not located a relevant majority opinion which upholds this conclusion.

  • Logically, the absence of a finding of illegitimacy doesn't imply that all government interests are legitimate; for example, it could be that no court was ever asked to rule on the legitimacy of an illegitimate purported government interest without being able to sidestep the question by deciding the case otherwise. – phoog Jun 30 '17 at 23:03
  • I'm looking for evidence for a known lower bound, which would show that there exists any such limit. Until evidence of such a limit exists, we can't logically say that there must be one. – user6726 Jul 1 '17 at 0:52

This is a bit sideways of your question, but the Supreme Court has held that "a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) later cited in Romer v. Evans, 517 U.S. 620, 634-635 (1996).


The legal standard of legitimate government interest is a surprisingly high bar because it's very subjective and courts traditionally preume that all legislative acts are rational, placing the burden on the plaintiff to show that it's not.

Essentially, the rational basis test only asks:

  • Whether or not the government has the authority to regulate the matter at hand (derived from one of its enumerated powers).

-- and to a lesser extent:

  • Whether or not there is an articulatable need for the law to exist (the Congress/Legislature does not have to justify its reasons for a law but it usually does, and that reason is presumed valid regardless of how it's contrived).

An example of where the government failed to meet this standard can be found in United States v. Morrison. At issue was a provision in the 1994 Violence Against Women Act that allowed women to file civil suits against their attackers in federal court.

In the case, a lawsuit was filed against a Virginia Tech student for allegedly raping a fellow female student during a sexual encounter on campus. A state grand jury found insufficient evidence of a crime and no charges were filed against him, but she sought civil damages in federal court under the VAWA. The case worked it's way up to the Supreme Court.

While the majority opinion of the court did not specifically use the words rational basis, they applied the standard's definition when they ruled that provision unconstitutional.

Basically, Congress justified the Act on economic grounds and argued that it has the power to do so under the commerce clause of the Constitution. The court held that violence against women -- while horrible I might add! -- is not an economic activity, and only had an "attenuated" [loosely connected] effect on interstate commerce when taken in aggregate because individual crimes are local matters for local government to handle (no interstate aspect).

In other words, the federal government does not have a legitimate interest (i.e. no authority) to regulate non-economic, non-interstate issues.


If there is no legitimate government interest behind a policy enacted by, say, a state legislature, that doesn't necessarily mean they were pursuing a government interest and that interest was illegitimate. It means the policy they were pursuing was not found to be what is considered a legitimate government interest.

It is not true that all government interests are legitimate. The courts do, however, defer to the legislature under this standard. They assume the legislature acts rationally and, thus, the ends it pursues are legitimate. However, the opposite is a finding that an action is "not rationally related to any conceivable legitimate end of government."

An example is that state laws distinguishing between residents who have lived there a long time or a short time - these should be struck down because they have no rational relationship to any legitimate state interest. Also, consideration of a school's psonsoring of extracurricular activities would also fall under the legit government interest (in this case, an example is a public school's interest of encouraging tolerance and promoting leadership skills by funding student groups which only adhere to a policy by which everybody is welcome to join [see Christian Legal Society Chapter v. Martinez).

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