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State v. Druktenis1/30/2004
46-47; Marrujo, 118 N.M. at 757-58, 887 P.2d at 751-52 (stating that rational basis scrutiny applies when laws involve "personal activities that do not involve fundamental rights"); Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, 18, 121 N.M. 821, 918 P.2d 1321 (same, quoting Marrujo); see also Washington v. Glucksberg, 521 U.S. 702, 728 (1997) (holding that asserted right to assistance in committing suicide is not a fundamental right, and that the constitution required that the state's "assisted-suicide ban be rationally related to legitimate government interests"); In re J.W., 787 N.E.2d 747, 757 (Ill. 2003) ("Where the statute does not affect a fundamental constitutional right, the test for determining whether the statute complies with substantive due process is the rational basis test."); State v. Radke, 647 N.W.2d 873, 877 (Wis. Ct. App. 2002) (same); Rotunda & Nowak, supra, § 18.3, at 231 ("Today the Court employs the traditional rational basis test when the classification to be tested does not involve a fundamental right, and does not employ the characteristics of race, national origin, citizenship, sex or legitimacy of birth to define the benefited or burdened class.").
Thus, under rational basis scrutiny, the classification must only be rationally related to a legitimate governmental interest. Trujillo III, 1998-NMSC-031, 14; Pinnell, 1999-NMCA-074, 29; see also Mott v. Sun Country Garden Prods., Inc., 120 N.M. 261, 266, 901 P.2d 192, 197 (Ct. App. 1995) ("To withstand substantive due process scrutiny, a statute need only bear some rational relationship to a legitimate legislative goal or purpose."). In making it clear that rational basis scrutiny is not a "toothless," "virtual rubber-stamp," as it had been so characterized in Trujillo I and Richardson, Trujillo III noted that the United States Supreme Court had used the rational basis standard to overturn legislation. Trujillo III, 1998-NMSC-031, 30-31; see Lawrence, 123 S. Ct. at 2484-85 (O'Connor, J., concurring) (discussing use of rational basis standard in Supreme Court cases); Romer, 517 U.S. at 635 (holding, under a rational basis standard, a classification of homosexuals not to further a proper legislative end).
We are unaware of any express retreat in the United States Supreme Court from the description of rational basis scrutiny in McGowan v. Maryland, 366 U.S. 420, 425-26 (1961):
Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
In FCC v. Beach Communications, Inc., 508 U.S. 307 (1993), the Court continued this analytic approach, stating " n rational basis review, a classification . . . comes to us bearing a strong presumption of validity, and those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it." Id. at 314-15 (internal quotation marks and citations omitted); see Rotunda & Nowak, supra, § 18.3, at 231 ("The Justices [of the United States Supreme Court] will not review the reasonableness of laws tested under the rationality test. Even though the classification may seem unreasonable or unfair, a majority of the
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