38 UCLA L. Rev. 107 (1990-1991)
Another Spin on Allegheny Pittsburgh

handle is hein.journals/uclalr38 and id is 121 raw text is: ANOTHER SPIN ON ALLEGHENY
PITTSBURGH
John Hart Ely*
As usual Professor Cohen is right: the challenged practice in
AlleghenyI would not have been invalidated under the Equal Pro-
tection Clause had it not violated state law. That need work no
massive shock to the system, however. The only occasions on
which a rational basis test will invalidate a (nonhypothetical2)
law are those on which one or more goals (including the real one)
have been excluded as potential justifiers. Sometimes goals will be
excluded because they violate the federal constitution. Thus, for
example, in Skinner v. Oklahoma :3
Given that an admission of the real goal of the distinction in is-
sue (a desire to punish larcenists more harshly than embezzlers)
would have rendered the [sterilization] law as applied to Skinner
an ex post facto law (and a strongly arguable violation of the
Cruel and Unusual Punishment Clause as well), the state was
disabled from relying on that goal, which left the classification
without another to which it related even rationally.4
* Robert E. Paradise Professor of Law and Senior Research Fellow, Hoover In-
stitution on War, Revolution, and Peace, Stanford University.
1. Allegheny Pittsburgh Coal Co. v. County Comm'n, 109 S. Ct. 633 (1989).
2. Any fool can invent a law and a sole pupose thereof that have no relation
to each other-accordian lessons as a cure for global warming, or whatever-but no
matter how low one's opinion of legislatures, that is not the way the world works.
3. 316 U.S. 535 (1942).
4. J. ELY, DEMOCRACY AND DisTRusT: A THEORY OF JUDICIAL REVIEW
245-46 n.38 (1980); see also, e.g., Zobel v. Williams, 457 U.S. 55, 61-63 (1982); Shapiro
v. Thompson, 394 U.S. 618, 632-33 (1969); J. ELY, supra, at 246 n.38:
Considered in the context of the Court's earlier decision in Roe v. Wade,
410 U.S. 113 (1973), the case of Maher v. Roe, 432 U.S. 464 (1977),
upholding the exclusion of abortions from the class of operations [for]
which poor people are statutorily entitled to funding, is susceptible to a
similar analysis. The goal in terms of which the Court upheld this legisla-
tive choice, that of discouraging abortions, is one that it had resoundingly
declared unconstitutional four years earlier in Roe. That left only the
goal of saving the taxpayers' money, to which discouraging abortions

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