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Georgia Supreme Court Reaffirms Right to Earn a Living

May 31, 2023

The Georgia Supreme Court issued a unanimous ruling today striking down an absurd state law that prohibited people from earning money by helping mothers learn to nurse their babies. The Goldwater Institute, joined by our friends at the Pacific Legal Foundation, filed multiple briefs in the case urging the court to reaffirm economic liberty as one of the vital freedoms protected by the state constitution. And the justices agreed, declaring Georgia’s “lactation consultant” licensing law unconstitutional and making clear that the right of Georgians “to pursue a lawful occupation of their choosing free from unreasonable government interference” remains a meaningful limit on government power.

That should never have been open to doubt, but unfortunately, federal courts have long denigrated the right to economic liberty. When asked whether an economic regulation unjustly deprives people of this vital freedom, federal courts have typically used the “rational basis test”—a legal theory that presumes so strongly in the government’s favor that it has largely rendered economic freedom illusory for many people around the country. And, sad to say, many state courts have thoughtlessly adopted that federal legal theory even when applying their own state constitutions.

As we pointed out in our briefs, that’s senseless. The federal “rational basis” theory was created by the U.S. Supreme Court in 1934, to interpret the federal Constitution. It’s simply bizarre to use it to interpret a state constitution that was adopted in 1982! What’s more, the right to earn a living is one of the longest-standing and most crucial of the principles inherent in the “liberty” that our federal and state constitutions were written to protect.

Today’s ruling agrees with that. Expressly refusing to adopt the federal “rational basis” test, Georgia’s high court instead made clear that, as a matter of state law, “the right to work and make a living…may be abridged to the extent, and only to the extent, that is necessary reasonably to insure the public peace, safety, health.” Since there’s no realistic threat to public safety from lactation consulting for money—after all, it was already legal in Georgia to do it for free—the court found it unconstitutional to require a government permission slip to engage in that business.

The case, litigated by our friends at the Institute for Justice, is just the latest part of Goldwater’s work championing Americans’ right to earn a living. And it’s not just courts that can act to protect this freedom. Goldwater has already passed our Right to Earn a Living Act—which requires the government to prove a genuine need for restricting this fundamental right—in several states, in addition to enacting our reforms protecting people from out-of-control administrative agencies and empowering people to move from state to state without losing their occupational licenses..

It’s unfortunate that federal courts—not to mention Congress—still lag behind some of states on the importance of the right to earn a living. But it’s gratifying to see that more and more states are coming to recognize that this right—which Justice William O. Douglas once called “the most precious liberty that man possesses”—deserves meaningful protection from the courts.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.



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