Introduction: The State-Interest Inquiry
It is a fundamental principle of constitutional law that a state government’s police power “is one of the least limitable of governmental powers.”1 Where no fundamental rights or protected social classes are implicated, the states may typically, within the constraints of the constitutional prohibition on arbitrary or discriminatory legislation, adopt any measure that is rationally related to a legitimate governmental interest.2 And although the federal government acts within a more restricted ambit of lawful authority,3 it too may as a baseline proposition take any action that is rationally related to a legitimate exercise of its constitutionally enumerated powers.4 As Chief Justice Marshall once famously defined the scope of federal power, “Let the end be legitimate, let it be within the scope of the [C]onstitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the [C]onstitution, are constitutional.”5
At both the state and federal levels, then, any legitimate state interest can in most cases provide a constitutionally sufficient justification for state action. And up through the early twentieth century, even state action that encroached on constitutionally protected rights was lawful as long as it possessed a rational relationship to some legitimate end.6 Even when the U.S. Supreme Court’s recognition of a personal right to economic liberty under the Due Process Clause reached its apogee in 1905 with the Court’s invalidation of a New York statute that limited bakers’ working hours, for example, the Court did not impugn as insufficiently weighty the state’s asserted interests in “safeguard[ing] the public health” and the health of the bakers;7 rather, the ineffectual manner in which the statute served those interests8 led the Court to suspect that the law was, “in reality, passed from other motives.”9 And those other motives — economic redistribution through the regulation of private contract — were simply not constitutionally legitimate under the Court’s then-conception of economic liberty.10
But during the wax of the New Deal regulatory state, the wane of the Court’s recognition of constitutional economic rights11 ushered in an expanded range of constitutionally “legitimate” purposes.12 A 1938 footnote in United States v. Carolene Products Co.13 responded to this increased risk of potentially meddlesome state action by reserving the possibility that state action that impinges on select constitutional values may warrant “more exacting judicial scrutiny” than does state action otherwise.14 Soon thereafter, perhaps wary of the totalitarian orthodoxies then riving Europe, the Court began to employ just such heightened scrutiny under the Free Speech Clause, declaring in 1943 that “freedoms of speech and of press . . . are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect.”15 This ideal crystallized into the First Amendment’s demand, first articulated in a 1957 Justice Frankfurter concurrence, that state action requiring “a citizen to . . . forego even a part of so basic a liberty as his political autonomy” serve not simply a legitimate, but, still more, a compelling state interest.16 A majority of the Court soon cemented this demand into free speech jurisprudence,17 and the compelling-interest requirement eventually leaked into free exercise18 and race-based equal protection19 jurisprudence as well.
Over time, the application of heightened scrutiny has resolved into a familiar tripartite framework20: Most state action is subject to rational basis review and so need only be rationally related to a legitimate state interest.21 On the other hand, state action touching select constitutional rights is subject to strict scrutiny and so must be narrowly tailored to serve a compelling state interest.22 Finally, the Court applies an intermediate level of scrutiny — requiring that state action be “substantially related” to the achievement of an important state interest23 — when assessing sex-based equal protection claims24 and certain free speech claims.25 But although the state-interest framework provides analytical scaffolding for a welter of constitutional doctrines, no watershed opinion has set out a clear method for determining whether any given interest is compelling, important, or merely legitimate.26
This Note examines how the Court in practice undertakes this classification and suggests that the result in any given case bears little decisional weight; accordingly, it would behoove the Court to consider whether the gains of appearing to evaluate the relative importance of state interests outweigh the inquiry’s potential costs. This Note proceeds in four Parts. Part I demonstrates how, under the Court’s current approach to heightened scrutiny, the weight of the policy interests underlying any given state action will rarely if ever prove outcome-determinative in a suit challenging that action. Part II addresses the Court’s race-based equal protection cases, which provide a seeming exception to the proposition laid out in Part I, and concludes that even in those cases the state-interest inquiry does not in the end carry much significance. In light of the state-interest inquiry’s marginal decisional utility, Part III examines its possible costs. The Note concludes with the recommendation that the Court either give the state-interest requirement real weight — which would require the Court to develop a rigorous methodology for assessing the relative importance of asserted state interests — or else consider shedding the inquiry altogether.
I. The State-Interest Inquiry’s Questionable Utility
The Court rarely deals in depth with the state-interest question. When applying heightened scrutiny, the Court often finds that the state has failed to adopt an appropriately tailored means of advancing its asserted interest and so has no need to decide whether that interest is compelling or important.27 After examining those cases in which the Court has ruled on the state-interest question, this Part determines that such rulings bear little on the ultimate question of the challenged state action’s constitutionality. Section I.A details the Court’s expansive approach to defining compelling or important interests, such that nearly any asserted interest can satisfy the requisite standard. Sections I.B and I.C examine those instances in which the Court has found an asserted state interest to be insufficient to justify rights-infringing measures. In some such cases, discussed in section I.B, the Court has found the asserted interest constitutionally illegitimate, rather than merely unimportant. In the remainder of such cases, discussed in section I.C, the Court has considered the interest only in narrow relation to the state’s chosen means of advancing it — an inquiry that is already captured in heightened scrutiny’s independent requirement that the state’s means be appropriately tailored to serve its ends.
In most heightened-scrutiny cases, the Court easily blesses the state’s asserted interest as satisfying the requisite standard. The Court is rarely explicit about the justification for its approval, typically treating the state interest’s weight as purely axiomatic.28 Many such cases rely on unelaborated social or moral value judgments. For example, the Court has treated as self-evident the state’s compelling interest in “ensur[ing] the basic human rights of members of groups that have historically been subjected to discrimination,”29 and has found it “evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’”30 Although the Court is typically content to employ an “intuitive . . . ‘know it when I see it’ approach” in such cases,31 it has occasionally elaborated that a value might derive its “compelling” or “important” status from its coherence with longstanding traditions of common law32 or with constitutional values.33
Elsewhere, the Court seems to rely on traditional notions about the proper functions and operation of the state to support its determination that an interest is compelling or important. For example, the Court has found that the interest in raising revenue “[o]f course . . . is critical to any government,”34 and that “combating terrorism is an urgent objective of the highest order.”35 Ensuring legitimacy is key: according to the Court, “no one denies” that a state’s interest in inspiring public faith in its judiciary “is genuine and compelling,”36 and the Court has noted the significance of “preventing quid pro quo corruption or its appearance” in the political process,37 first labeling it “sufficiently important” to justify restrictions on campaign contributions38 and later upgrading it without remark to “compelling.”39 Finally, democratic principles underlie many interests offhandedly described as compelling. For example, the Court has found that a state’s interests in conducting reliable elections and in ensuring citizens’ ability to vote freely “obviously are compelling ones.”40
Although the Court has thus provided an array of foundations upon which to ground a conclusion that a given interest is compelling or important, these foundations do not provide much practical aid in sifting the compelling or important from the merely legitimate; after all, it is difficult to conceive of any legitimate state interest that, broadly defined, does not overlap with some common law or constitutional value or with some traditional state function. Indeed, the Court routinely upholds asserted interests without fanfare. As the D.C. Circuit has noted, “the pedestrian nature of those interests affirmed as substantial” in the commercial-speech context “calls into question whether any governmental interest — except those already found trivial by the Court — could fail to be substantial.”41 Under intermediate scrutiny, the Court has upheld a variety of interests virtually without comment, whether in the sex-based equal protection context42 or in the free speech context.43 And even under strict scrutiny, the Court finds such arguably nonvital interests as “protecting the integrity of the Medal of Honor” to be compelling “beyond question.”44
Certainly, few would quibble with the significance of the interests the Court has so elevated. However, the ease with which asserted state interests satisfy the compelling- and important-interest requirements suggests that those requirements play little practical role in distinguishing constitutional from unconstitutional state action. And indeed, as the next two sections explore, those interests that are rejected under heightened scrutiny appear to be rejected not because the Court deems them insufficiently consequential but because they fail to cut the constitutional mustard for independent reasons.
Even under rational basis review, a prerequisite to state action is that the government’s ends be legitimate.45 Although the outer bounds of legitimacy are indeterminate,46 it is clear at a minimum that the state may not legitimately take action in service of an end that flatly contravenes the Court’s contemporary understanding of constitutional values.47 Sometimes, then, the Court rejects asserted state interests under heightened scrutiny not because those interests are insufficiently compelling or important, but rather because those interests are illegitimate in the first place and so could not animate state action under any standard of review.
Once upon a storied time, for example, the Court accepted an interest in stemming “the corrosive and distorting effects of immense aggregations of wealth” in the political arena as sufficiently compelling to justify limits on corporate campaign expenditures.48 When the Court reversed course in Citizens United v. FEC,49 it did so not on the basis that the interest’s strength had been attenuated by intervening developments — but rather on the basis that the interest was “unlawful” under the First Amendment.50 Similarly, in dismissing the state’s interest in insulating shareholders from funding corporate speech they oppose — an interest once deemed “legitimate,”51 perhaps even “weighty”52 — Citizens United signaled that the potential for censorship inherent in such an interest left it constitutionally foreclosed altogether.53 And in the sex-based equal protection context, the Court has rejected asserted state interests that overtly or covertly rely on assumptions about men’s and women’s purportedly distinct natural capacities and preferences54 or fitness for particular social roles55 — interests, in other words, that run directly counter to the Court’s recognition that the Equal Protection Clause forbids state practices that curtail civil rights on the basis of broad stereotypes about gender roles.56
The race-based equal protection cases offer an additional context in which the Court has resolved heightened scrutiny’s state-interest inquiry on the basis of the underlying illegitimacy of the state’s asserted interest. Initially, race-based state action did not offend the Equal Protection Clause as such unless it withheld from members of one race a legal right held by members of other races.57 But as the civil rights movement called into question the adequacy of a regime that promised formal racial equality while yet permitting racial division,58 the Court toward the end of the 1960s began to foreground its World War II–era dictum that mere “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”59 Thus, alongside the Equal Protection Clause’s original purpose of stemming racial subordination,60 there now floats the idea that the clause operates to prevent state-sanctioned racial differentiation of any form.61
Against this backdrop, the Court has refused to recognize a compelling state interest in the broad remediation of the effects of past racial discrimination.62 This refusal, however, is not grounded in the idea that such an interest is unimportant, but rather in the fear that it is “too amorphous,” permitting “remedies that are ageless in their reach into the past, and timeless in their ability to affect the future,”63 and that so ensure race’s continued relevance.64 Accordingly, although the Court has held that broadly remedial ends are not compelling, the Court seems to view such ends as altogether constitutionally illegitimate.65 In contrast, the Court has recognized a compelling interest where a state actor employs race-based measures to correct its own past unlawful discrimination.66 Unlike remedial action predicated on one’s membership in a given racial group, remedial action yoked to a personal rights violation — the law’s very wheelhouse67 — classifies people not by race, but rather by legal injury.68 Ultimately, the Court’s distinction between general and specific remediation has little to do with these interests’ respective importance, and everything to do with their respective legitimacy under the Court’s view of the Fourteenth Amendment.
As observed in section I.A, the Court upholds nearly any legitimate interest that is defined broadly in terms of its animating values. Sometimes, however, the Court rejects a state interest after defining that interest narrowly; rather than considering the state’s overarching policy objective, the Court in these cases, whether sua sponte or based on the state’s own characterization, considers the state’s interest in pursuing that objective through the specific means at issue. For example, in invalidating a law that deprived criminal offenders of profits earned through depictions of their crimes, the Court wrote that “the State has a compelling interest in compensating victims . . . but little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime.”69 Under this method of analysis, the Court has advanced two unremarkable propositions that are already covered by heightened scrutiny’s independent requirement that the state’s means be appropriately tailored to serve the state’s desired end.
First, the Court has established that the state has no compelling interest in pursuing its substantive aims through action that only marginally advances those aims relative to the burden such action imposes on individual rights.70 For example, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,71 the Court considered whether a city ordinance forbidding ritual animal sacrifice violated the Free Exercise Clause.72 Although the Court described the state’s asserted interests in “protecting the public health and preventing cruelty to animals” as merely “legitimate,”73 little hinged on the description: the Court held not that such interests are never compelling, but rather that they were not compelling “in the context of the ordinances” at issue.74 At bottom, the city’s “fail[ure] to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort” meant that the sacrifice ban simply did not make a sufficient contribution toward the state’s end to justify its incursions on religious liberty.75
But although such cases are framed in terms of the state’s interest in pursuing a given measure, they are better understood as cases in which the state has articulated a broad objective that the Court would typically recognize as compelling, but in which the state has simply failed to further its objective through appropriately tailored means.76 In Lukumi Babalu, the Court’s rationale for holding that the ordinances at issue served no compelling interest was virtually identical to the Court’s rationale for finding that, “even [had] the governmental interests [been] compelling, the ordinances [had not been] drawn in narrow terms to accomplish those interests.”77 Similarly, in Brown v. Entertainment Merchants Ass’n,78 the Court found that California’s ban on the sale or rental of certain violent video games to minors was not “justified by that high degree of necessity [the Court] ha[s] described as a compelling state interest.”79 But the Court’s reasoning on this point rested largely on California’s inability to “show a direct causal link between violent video games and harm to minors.”80 The constitutional infirmity in Brown, then, appeared to lie not in an insufficiently important objective but rather in the inefficacy of the state’s chosen means.81
Second, the Court has established that the state has no compelling interest in pursuing its underlying goals through overbroad measures in order to capture administrability gains.82 This proposition is most clearly illustrated in the early free exercise cases that reversed adverse unemployment benefits decisions. For example, in Frazee v. Illinois Department of Employment Security,83 the Court found that Illinois had shown no interest “sufficiently compelling” to justify denying unemployment benefits to a plaintiff who was unwilling to work on Sundays — not because the Court maligned Illinois’s interest in having workers available to facilitate “America’s weekend way of life,” but rather because the Court was “unpersuaded . . . that there [would] be a mass movement away from Sunday employ” were the plaintiff granted benefits.84 Here, too, the Court’s pronouncement on the state-interest question is ultimately a judgment on the fit between means and ends: a measure that sweeps more broadly than necessary in the name of convenience is simply inadequately tailored to its underlying goal.85
The upshot of the foregoing analysis is that, standing alone, the inadequacy of the substantive policy aim underlying a rights-infringing measure seems to be an inadequate basis for a finding of unconstitutionality. Rather, even when the Court rejects a legitimate interest as insufficiently compelling, it is in fact the lack of fit between ends and means that drives the Court’s analysis. Given that the tailoring inquiry already asks whether the state can better fulfill its substantive goals through less burdensome means,86 then, the state-interest inquiry turns out to be largely redundant.
II. An Outlier? Race and the State-Interest Inquiry
As Part I has explained, the Court virtually never invalidates state action on the sole ground that it serves an insufficiently consequential end. When it appears to do so, its holding typically rests on a conclusion that the state’s asserted interest is per se illegitimate or on a finding that the state’s chosen means are inadequately tailored to the state’s policy ends. In one area of law, however, the Court does at first glance appear to distinguish between the relative weight of legislative aims: race-based equal protection. Only two primary state interests — national security87 and the educational benefits flowing from classroom diversity in higher education88 — have been established as compelling interests that can justify the state’s use of racial categories.89 Given the ease with which the Court typically finds compelling interests, the dearth of such interests in the race-based equal protection context is notable. Justice Thomas, for one, has expressed incredulity that classroom diversity should represent a compelling interest in light of the fact that “the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination.”90 Perhaps the Court’s miserly approach to ratifying state interests in this line of cases reflects an effort to develop a compelling-interest standard that has greater bite.
But upon further examination, it becomes clear that dispute over the validity of state-sanctioned racial classification per se,91 and not judgments about the relative weight of the state’s asserted justificatory interests, has been driving the Court’s race-based equal protection jurisprudence. For example, in Palmore v. Sidoti,92 the case in which the Court supposedly rejected promotion of a child’s best interests as a compelling state interest, the Court reversed a Florida court’s summary affirmance of a trial court’s decision to grant custody of a young girl to the girl’s white father over the girl’s white mother, who was cohabiting with a black man.93 While finding neither parent to be unfit,94 the trial court feared the child would face stigma were she to remain in a mixed-race household.95 In reversing the Florida appeals court’s affirmance of the trial court’s judgment, the Supreme Court acknowledged Florida’s “duty of the highest order” to protect its minors, but held nevertheless that “the reality of private biases and the possible injury they might inflict” are not “permissible considerations for removal of an infant child from the custody of its natural mother.”96 In other words, the Court did not find Florida’s asserted interest in any way wanting; rather, despite Florida’s legitimate, even compelling,97 interest, “[t]he effects of racial prejudice, however real,” simply could not form part of the Florida trial court’s calculus.98
Further, even though military necessity is commonly cited as a state interest sufficient to justify racial categorization, this conventional wisdom rests upon shaky ground. The proposition that national security is uniquely compelling in this context derives from the World War II–era case Korematsu v. United States,99 in which the Court affirmed the conviction of a Japanese American man under an exclusion order that barred persons of Japanese ancestry from being present in a designated military area.100 But Korematsu, although understood to be a progenitor of strict scrutiny,101 preceded a decade of far greater judicial deference to race-based state action than would be accepted today.102 Moreover, Korematsu did not squarely hold that the racial distinction at issue was appropriate only because of military necessity;103 rather, it pointed to military exigency as evidence that the racial distinction at issue was not driven by animus.104 Given that animus is no longer necessary to make out an equal protection violation,105 Korematsu’s continuing vitality is unclear.106 Certainly, the opinion has been roundly criticized, including by the Court itself.107
Against this backdrop of skepticism as to any state-sanctioned racial categorization, Grutter v. Bollinger,108 the 2003 decision that established classroom diversity as a compelling interest sufficient to justify racial distinctions in university admissions,109 appears to be an outlier. Commentators have recognized that the tacit dispute in the educational diversity cases appears to be over the validity of the state’s interest in “aid[ing] persons perceived as members of relatively victimized groups”110 — an interest that precedent forbids the state from pursuing directly, at least in the context of race111 — and not over how or whether the racial composition of a classroom actually affects learning outcomes.112 Indeed, for at least some of the Justices who support the constitutionality of affirmative action measures, assuaging intractable racial injustices is the chief purpose of such measures.113 And on the other hand, those who reject the constitutionality of such measures seem to suggest that state-sanctioned racial categorization, for any reason, is flatly unconstitutional.114
The Court has been reluctant to extend Grutter into new areas115 and indeed has signaled its discomfort with the opinion itself.116 Accordingly, the elevation of educational diversity as a compelling interest is best understood as a sui generis toehold in the constitutional edifice, at risk of crumbling away under pressure.117 But whether because they believe that the Court should recognize additional interests that could support affirmative action measures118 or because they believe that Grutter was wrongly decided,119 commentators seem dissatisfied with a regime in which educational diversity stands above almost all others as a compelling state interest. Thus, although the race-based equal protection cases cast little light on the Court’s approach to the state-interest inquiry more generally, they inadvertently illuminate something else: the doctrinal quicksand in which the Court would mire itself if it were to develop a compelling- or important-interest jurisprudence that required it to pick and choose which state interests to elevate. Taking up this point, the next Part examines the Court’s current dilemma — on the one hand, applying true discernment when evaluating state interests’ weight would leave the Court in an awkwardly legislative role, but on the other hand, the current practice of ratifying virtually any broadly termed state interest raises its own potential problems.
III. The Possible Costs of the State-Interest Inquiry
As Parts I and II have explained, despite the Court’s language of legitimate, important, and compelling interests, such classifications bear little decisional weight. Indeed, apart from administrative convenience — which, as discussed in section I.C, is better understood as a question of tailoring — it is difficult to find any interest that the Court has described as legitimate but not compelling. Insofar as distinctions exist among the various levels of scrutiny, they appear to lie not in the requisite weight of the state’s interest, but rather in the requisite fit between that interest and the state’s chosen means of advancing it.120
It should not, however, be surprising that the gradations between legitimate, important, and compelling interests are essentially rhetorical. Because setting national policy priorities is a quintessential duty of the political branches, the Court would be ill situated to develop a rigorous judicial mechanism for assessing the relative importance, rather than legitimacy, of a state’s objectives.121 Making such policy-based judgment calls would threaten to insert the Court in debates that the Constitution demands be left to a popular “free trade in ideas”122 and feed the common suspicion that the Court rules based on its policy preferences and not on neutral principles of law123 — a suspicion not infrequently voiced by the Court’s own members.124 Accordingly, the Court has prudently avoided wrangling with legislative priorities and has instead freely imparted its stamp of approval upon legitimate legislative ends.
But despite the minimal decisional weight of the Court’s frequent endorsements of broadly stated governmental interests, commentators nonetheless view such endorsements as consequential.125 Accordingly, one potential risk of the largely extraneous state-interest inquiry is the unexpected power of the Court’s failure to provide explicit ratification of any given state interest. A pair of First Amendment freedom-of-association cases provides illustration. In Roberts v. United States Jaycees,126 the Court found that “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests” sufficient to justify Minnesota’s decision to require a private organization to admit women under a state antidiscrimination law.127 In coming to this conclusion, the Court in typical fashion relied on broadly stated values for the notion that discrimination “both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.”128
But in the post-Jaycees case Boy Scouts of America v. Dale,129 the Court held that New Jersey could not require under its public accommodations statute that the Boy Scouts reinstate a former assistant scoutmaster who had been terminated for being “an avowed homosexual and gay rights activist.”130 Absent from Dale’s majority opinion was any mention of New Jersey’s interest in combating antigay discrimination.131 Although Dale seemingly would have arrived at the same outcome even had the Court explicitly recognized the worth of New Jersey’s aims,132 the disparity between Jaycees’s recognition of the importance of sex-based antidiscrimination laws and Dale’s total silence on the importance of sexual orientation–based antidiscrimination laws seemed to invite readers to see meaning in the difference.133
Instructive, too, is the Court’s decision in Burwell v. Hobby Lobby Stores, Inc.134 In Hobby Lobby, the Court assessed a provision of the Patient Protection and Affordable Care Act of 2010135 (ACA) under the Religious Freedom Restoration Act of 1993136 (RFRA), a federal religious liberty statute that contains a compelling-interest standard analogous to the constitutional standard.137 The ACA provision at issue required certain employers to provide their employees with “minimum essential [health insurance] coverage”138 — later interpreted to include certain contraceptives.139 The Court found that the ACA’s contraceptive mandate violated the RFRA as applied to closely held corporations religiously opposed to covered contraceptives,140 on the grounds that the mandate was not the least restrictive means of fulfilling the state’s interest in “ensur[ing] that women employees receive, at no cost to them, the preventive care needed.”141 But in so holding, the majority opinion conspicuously declined to weigh in on whether such an interest is compelling142 — an omission that drew fire both from a dissenting Justice Ginsburg143 and from commentators.144
If the Court’s pronouncements on the weight of the state interest at issue are unnecessary as a doctrinal matter and can perhaps on occasion compromise the Court’s appearance of neutrality, there would seem to be little loss in dispensing with the value-laden “compelling” and “important” labels and instead moving directly to the question of whether a challenged state action is appropriately tailored to serve a legitimate interest.145 Of course, such a doctrinal shift would not wholly obviate the concerns associated with “overconfident judicial assessments of how important or unimportant some government interests, conceived of in any of several ways, ‘really’ are.”146 The tailoring inquiry itself invites value judgments, both in terms of how broadly or narrowly the Court defines the state’s legitimate interest,147 and in terms of what tradeoffs the Court will permit between marginal burdens on personal rights and marginal advancement of the interest at issue.148
However, the lone fact that the risk of actual or perceived value judgments will remain even if the Court dispenses with the “compelling” and “important” labels is not a justification for retaining those labels if they serve little utility and merely provide yet another locus for public skepticism. The level-of-generality problem associated with defining the state interest in question, after all, is no less troubling under the current doctrine than it would be under a regime that simply labels the state’s asserted interest either “legitimate” or “illegitimate.”149 And if the Court is to employ policy-based judgment calls, it seems better equipped to do so when undertaking an analysis of how well the state has tailored its means to its legitimate ends — in which context the Court’s analysis focuses on the effects of the specific state action at issue and not on the abstract prioritization of nebulously defined values.150 At any rate, the status quo calls for both such sets of seeming judgment calls, rather than simply the former.
The formidable compelling- and important-interest requirements, as it turns out, are more bark than bite. The requirement that any state action that threatens to encroach upon personal rights be justified by a weighty state interest looms large in constitutional rhetoric. But in practice, the Court, perhaps reluctant to usurp the legislature’s role in pronouncing on the relative importance of public policy aims, tends to green-light almost any broadly asserted interest without much fanfare. If the “compelling” and “important” labels provide nothing more than rhetorical gilding for legitimate interests, however, the Court should question whether its practice of parting freely with such currency in some cases and withholding it in others transmits tacit normative signals that sit ill with the Court’s institutional role.
Given that the distinction between legitimate, important, and compelling interests is virtually never of consequence, the Court could simplify its constitutional doctrine by requiring merely that state action be appropriately tailored to serve a legitimate end. Alternatively, the Court could begin to inject more rigor into the analysis, placing greater demands on the interests it upholds as compelling and thereby providing litigants with clear criteria for arguing an interest’s weight. As it stands, the compelling and important state-interest requirements remain an awkward, under-the-radar component of constitutional law — generally inconsequential but occasionally underfoot.