Article Title

Revisiting Hooper


Part I of this article provides the background to the New Mexico Court Of Appeals' and U.S. Supreme Court's decisions in Hooper. The case law prior to Hooper clearly indicated that rational basis review applied to this type of right-to-travel challenge. The New Mexico Court of Appeals found the statute constitutional on a rational basis standard. Even though the Supreme Court had previously approved of veterans' benefits of the type provided by the State of New Mexico on the theory that states could reward veterans for past service, it abandoned this precedent and reversed in Hooper. The Court applied the reasoning from Zobel v. Williams, a new case barring states from rewarding residents for their prior service to the state. Part II analyzes the reasoning in Hooper and Zobel. While the Court purported to apply rational basis review in both cases, I argue that the reasoning of both opinions is more consistent with strict scrutiny. Additionally, sources in the Blackmun Archives support this conclusion by revealing the drafting history of Zobel. Zobel was initially written as a heightened scrutiny case and the logic of heightened scrutiny persisted into the opinion eventually issued by the Court. Part VI considers the post-Hooper right-to-travel landscape. The Supreme Court no longer claims that rational basis review applies to these types of challenges and has adopted explicitly the implicit holding of Hooper and Zobel that strict scrutiny is appropriate in these cases. The New Mexico Court of Appeals' decision in Hooper, while correct at the time, fell victim to a shift in the law that the Supreme Court only acknowledged much later.

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.