When the constitutionality of a law is challenged, the most critical factor is the test use by the court in deciding whether it passes scrutiny. If it’s strict scrutiny, the law almost always gets crushed. But then, strict scrutiny is reserved for laws that implicate fundamental rights, which are fundamental because the Supremes say they are.
And the others?
Last week the Illinois Supreme Court upheld a state law banning sex offenders from public parks, overturning a 2017 appeals court ruling that deemed the statute “unconstitutional on its face because it bears no reasonable relationship to protecting the public.” The seven members of the higher court unanimously disagreed, saying, “We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.”
In reaching that conclusion, the justices relied on alarming claims about recidivism among sex offenders, even while acknowledging that the claims have been discredited.
Meet the rational basis test.
Thus, the proper gauge for his substantive due process claim is the so-called rational basis test. Rizzo, 2016 IL 118599, ¶ 45 (“When legislation does not affect a fundamental constitutional right, this court, in a due process analysis, applies the rational basis test to determine the legislation’s constitutionality.”). Under that test, our inquiry is twofold: “[W]e must determine whether there is a legitimate state interest behind the legislation, and if so, whether there is a reasonable relationship between that interest and the means the legislature has chosen to pursue it.”
Much as strict scrutiny proves fatal to laws, rational basis is a big ol’ rubber stamp, where any argument that isn’t totally batshit crazy, and a few that are, will suffice.