                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 04-2755 & 04-4009
ED H. SMITH, ALLAN STREETER,
DOROTHY TILLMAN, et al.,
                                              Plaintiffs-Appellees,
                                 v.

CITY OF CHICAGO,
                                            Defendant-Appellant.
                          ____________
           Appeals from the United States District Court
       for the Northern District of Illinois, Eastern Division.
           No. 94 C 920—Rebecca R. Pallmeyer, Judge.
                          ____________
  ARGUED SEPTEMBER 27, 2005—DECIDED AUGUST 7, 2006
                   ____________

  Before FLAUM, Chief Judge, and BAUER and SYKES,
Circuit Judges.
  SYKES, Circuit Judge. This case is satellite litigation
emanating from the long-running legal battle over the
remapping of Chicago’s aldermanic wards following the
1990 census. Though it presents only a claim for
unreimbursed attorneys’ fees and related litigation ex-
penses, it is dressed up in constitutional clothing. The
plaintiffs are Chicago aldermen who challenged the City’s
ward map in court and then claimed that the City’s refusal
to finance their legal expenses in that litigation violated
their equal protection and free speech rights.
  Illinois law requires the City Council to redraw Chicago’s
aldermanic ward boundaries after each national census.
2                                   Nos. 04-2755 & 04-4009

The City’s attempt to create a new ward map after the 1990
census generated more than its share of federal litigation.
Chicago’s aldermen were divided (with a few exceptions)
into two opposing camps during the political struggle over
the new ward boundaries—the “Administration Aldermen,”
aligned with Mayor Richard M. Daley, and the “Opposition
Aldermen.” When the two sides could not agree, their
competing ward maps were submitted to Chicago’s voters
via referendum as required by state law. The map proposed
by the Administration Aldermen was adopted by voters and
became law.
  The new map was challenged in several federal lawsuits,
and the two aldermanic factions lined up against each other
in the consolidated litigation. As the case progressed, the
City Council authorized payment of the litigation-related
attorneys’ fees and expenses of the Administration Alder-
men who intervened to defend the map but not the Opposi-
tion Aldermen who sued to invalidate it. This decision
spawned the present lawsuit, in which the Opposition
Aldermen argued that this unequal treatment in the
payment of attorneys’ fees was unconstitutional. The suit
remained pending while the redistricting litigation pro-
ceeded to trial, appeal, remand for limited retrial, and
ultimately settlement. The Opposition Aldermen partially
prevailed and were awarded some $8 million in attorneys’
fees under the fee-shifting provisions of the Voting Rights
Act, 42 U.S.C. §§ 1988 and 1973l(e).
   About $250,000 in litigation expenses, however, were not
included in the fee award, and those remaining unpaid
expenses are at issue in this action. The district court
granted summary judgment for the City on the free speech
claim. Following a bench trial on the equal protection claim,
the court concluded that the City’s decision to pay the
litigation expenses of the aldermen who defended the City’s
remap ordinance in court but not those who challenged it
failed the rational-basis test. The court was strongly
Nos. 04-2755 & 04-4009                                       3

influenced by an earlier decision of the City Council to pay
the litigation expenses of aldermen who sued the former
mayor in an unrelated set of lawsuits stemming from the
“Council Wars” of the mid-1980s. This, the court said,
required the City “live with [its] decisions and treat other
plaintiff-aldermen in like fashion.” The court awarded the
Opposition Aldermen their unreimbursed legal expenses
plus prejudgment interest.
   We reverse. No fundamental right or suspect classifica-
tion is implicated here, so the City’s action is reviewed only
for a rational relationship to a legitimate governmental
interest. This is a lenient standard, but the district court
failed to treat it as such. Defending the City’s ordinances
against legal challenge is unquestionably a legitimate
municipal interest, and it was entirely rational for the City
to pay the litigation expenses of the aldermen who inter-
vened on the City’s side in defense of the duly adopted ward
map but not those of the aldermen who sued to invalidate
it. That the City Council authorized payment of legal
expenses for certain other plaintiff-aldermen in unrelated
litigation years earlier does not obligate the City to finance
all subsequent aldermanic litigation against it—by opera-
tion of the Equal Protection Clause or any other principle.
The City is thus not required to “live with” its prior deci-
sions in the sense suggested by the district court.
  The free speech clause of the First Amendment does not
provide an alternative basis upon which to uphold the
judgment. The government’s decision not to subsidize the
exercise of a constitutional right does not infringe the right.
This case does not involve viewpoint discrimination within
a government-sponsored speech forum or a generalized
subsidy program for private litigation. The City’s decision
not to underwrite the Opposition Aldermen’s legal challenge
to the ward map did not violate their free speech rights.
4                                   Nos. 04-2755 & 04-4009

                      I. Background
  Illinois law provides that if the Chicago City Council fails
to pass a redistricting ordinance in the year that a national
census is conducted, proposed ordinances supported by at
least one-fifth of the aldermen may be submitted to the
electorate for a referendum vote. See 65 ILCS 20/21-38,
20/21-40 (2002). A referendum vote became necessary in the
remapping process that followed the 1990 census when the
so-called Administration Aldermen and Opposition Alder-
men could not reach consensus on a new aldermanic ward
map. On March 17, 1992, the voters of Chicago approved
the ward map submitted by the Administration Aldermen,
and this map consequently achieved the status of a City
ordinance.
   Three lawsuits challenging the validity of the redistrict-
ing ordinance followed closely on the heels of the referen-
dum. In the first, Barnett v. Daley, nine voters alleged that
the map violated the Voting Rights Act; they named all 50
aldermen as defendants in the suit. The 50 aldermen were
dismissed as defendants at an early stage of the Barnett
litigation. The second suit, also alleging violations of the
Voting Rights Act, was brought by the Opposition Alder-
men. In this case, Smith v. Daley, no aldermen were named
as defendants. The third suit, Bonilla v. City Council, was
brought by Latino voters and also did not name any alder-
men as defendants. The Administration Aldermen were
permitted to intervene as defendants in all three cases for
purposes of defending the remap ordinance, and they
retained private legal counsel to represent them. The
Opposition Aldermen also retained private counsel for
purposes of pursuing their claims as the plaintiffs in Smith.
The City of Chicago and the mayor, also defendants in the
three cases, were represented by the office of the City
Corporation Counsel.
  The three cases were consolidated for a 48-day bench
trial, and the district court entered judgment for the
Nos. 04-2755 & 04-4009                                           5

defendants on all claims. See Barnett v. City of Chi.,
969 F. Supp. 1359 (N.D. Ill. 1997). On appeal, this court
affirmed the judgment in Bonilla but, for reasons not
relevant here, vacated the judgments in Barnett and Smith
and remanded with directions for a limited retrial. Barnett
v. City of Chi., 141 F.3d 699, 706 (7th Cir. 1998). On
remand, the district court held that the Voting Rights Act
required a modification to the ward map ordinance to
incorporate an additional supermajority African-American
ward, and the parties entered into a consent decree modify-
ing the ordinance in conformity with the district court’s
decision. See Barnett v. City of Chi., 17 F. Supp. 2d 753
(N.D. Ill. 1998). The district court ultimately awarded more
than $8 million in attorneys’ fees to the plaintiffs in the
Barnett and Smith cases as prevailing parties pursuant to
the fee-shifting provisions applicable to successful claims
under the Voting Rights Act, 42 U.S.C. §§ 1988 and
1973l(e). See Barnett v. City of Chi., 122 F. Supp. 2d 915
(N.D. Ill. 2000), aff’d 3 F. App’x 547 (7th Cir. 2001).1 The
district court’s award of fees did not include $246,354.07
(primarily expert witness fees) that were incurred by the
Opposition Aldermen but were not recoverable under the
Voting Rights Act or other provisions. This amount is the
subject matter of the present case.
  As the redistricting litigation made its way through the
federal courts for nearly a decade, the City paid the attor-
neys’ fees incurred by the Administration Aldermen. The
Opposition Aldermen’s request for payment of attorneys’
fees, however, was denied. Specifically, on February 12,
1993, Opposition Alderman Lawrence Bloom wrote to


1
  The fee award was initially $5 million; before the district court
in the present case, the parties stipulated that this amount was
increased by supplemental orders of the district court in
Smith/Barnett.
6                                    Nos. 04-2755 & 04-4009

Administration Alderman Edward Burke, in Burke’s capac-
ity as chairman of the City Council’s Committee on Finance,
requesting payment of legal fees on behalf of the Opposition
Aldermen. Alderman Burke denied the request, citing a
provision in the Chicago Municipal Code governing payment
of City officials’ attorneys’ fees:
    In my opinion there is no basis in the Municipal Code
    of the City of Chicago to authorize payment of [your]
    legal fees. Section 2-152-170 of the Municipal Code
    authorizes the payment of legal fees for City officials
    when the action has been brought against them for
    activities performed in the course of their employment.
    This Section does not authorize the payment of legal
    fees for those persons bringing the action. . . . If you
    believe that there is any legal authority pursuant to
    which the City of Chicago may pay [your] legal fees I
    would welcome you to share this authority with me.
Alderman Burke reiterated his position in a second letter to
Alderman Bloom:
    [S]ection 2-152-170 of the Municipal Ordinances autho-
    rizes the City of Chicago to appoint outside counsel to
    defend an official or employee in an action or claim
    brought against the employee or official. It is clear that
    [your lawyer] is acting as the lead plaintiffs’ attorney in
    this litigation. I have not found any language in the
    Municipal Code to authorize the Committee on Finance
    to pay the fees of outside lawyers hired to sue the City
    of Chicago, its officials and employees.
  In February 1994, the Opposition Aldermen filed this
action against the City of Chicago alleging that the City’s
refusal to pay their attorneys’ fees while simultaneously
paying the fees incurred by the Administration Aldermen
violated their free speech and equal protection rights under
the First and Fourteenth Amendments. The suit remained
Nos. 04-2755 & 04-4009                                      7

pending for the next eight years until the underlying
redistricting litigation reached its conclusion in 2001. In
January 2002, the City moved for summary judgment, and
the district court dismissed the free speech claim but
preserved the equal protection claim for trial. Following an
eight-day bench trial, the district court held that (1) the
Opposition Aldermen had been “treated differently because
of their membership in a group that opposed the Referen-
dum Map espoused by the [C]ity,” (2) “the City applied § 2-
172-170 [the attorneys’ fees ordinance] unequally with
respect to Plaintiffs,” and (3) the City lacked a rational
basis for this difference in treatment. The court entered
judgment in favor of the Opposition Aldermen in the
amount of their previously unreimbursed litigation ex-
penses, $246,354.07, plus an additional $168,956.24 in
prejudgment interest.
  In reaching these conclusions, the district court relied
heavily on the fact that the City had, in unrelated litigation
predating the present dispute by nearly a decade, paid the
legal expenses of a group of aldermen (including Alderman
Burke) who sued Mayor Harold Washington and other city
officials during the turbulent “Council Wars” that followed
Washington’s election in 1983. See Roti v. Washington, 450
N.E.2d 465 (Ill. App. 1983) (“Roti I”); Roti v. Washington,
500 N.E.2d 463 (Ill. App. 1986) (“Roti II”). The Roti cases
arose out of a power struggle for control of the City Council
and tested the validity of certain resolutions adopted by
competing aldermanic factions regarding the organization
and operation of the Council. The City assumed payment of
attorneys’ fees for both sides in the Roti cases—including
Alderman Burke’s group, which had initiated the suits.
Burke, as chairman of the Finance Committee, authorized
the payment.
 The district court held that given the City’s action in the
Roti cases, its reason for denying attorneys’ fees to the
8                                    Nos. 04-2755 & 04-4009

Opposition Aldermen in the redistricting case—that it
would not authorize payment of attorneys’ fees for officials
who sued the City—was “unavailing” as a rational basis.
The court declared that the City “must now live with” its
prior decisions and “treat other plaintiff-aldermen in like
fashion.”


                      II. Discussion
A. Equal Protection
  We note at the outset that the equal protection claim
in this case suffers from a good deal of conceptual confusion;
the precise contours of the claim are at best fuzzy. The
district court held that the City, acting through Alderman
Burke, applied the attorneys’ fees ordinance
in a discriminatory manner in denying the Opposition
Aldermen’s request for attorneys’ fees. The ordinance in
question, Chicago Municipal Code § 2-152-170, authorizes
payment of attorneys’ fees for City officials and employees
when claims or actions are brought against them for their
on-the-job conduct. More specifically, § 2-152-170 provides,
in pertinent part:
    If any claim or action . . . is instituted against a current
    or former elected official, current or former appointed
    official or current or former employee of the city of
    Chicago . . . where such claim arises out of any act or
    omission, made in good faith, occurring within the scope
    of such person’s office or employment, the chairman of
    the committee on finance of the city council, with the
    approval and concurrence of the mayor, may at the
    request of such person appoint counsel to defend such
    person against any such claim or action.
  On appeal, the Opposition Aldermen describe their
equal protection claim—and the district court’s hold-
ing—more broadly than the district court apparently viewed
Nos. 04-2755 & 04-4009                                      9

it. They characterize their claim as a challenge to the City’s
discriminatory application of its “funding ordinances” in
denying their request for attorneys’ fees in the redistricting
litigation. At oral argument, we asked counsel for the
Opposition Aldermen to identify which other “funding
ordinances”—beyond § 2-152-170—were at issue here; he
responded that Alderman Burke “wasn’t limited to [§] 2-
152-170,” but was not more specific. Following argument,
counsel moved “To Clarify or to Correct Statements Made
at Oral Argument” and identified certain numerical line
items in the City’s 1995 Annual Appropriations Ordinance
as the source of Alderman Burke’s authority to pay attor-
neys’ fees claims of city officials.
  This broader characterization of the equal protection
claim appears to be on somewhat better footing than the
district court’s. The language of the attorneys’ fees ordi-
nance plainly does not authorize payment of attorneys’ fees
for officials who sue the City. The ordinance by its terms is
limited to payment of attorneys’ fees for City officials or
employees in claims “instituted against” them for their job-
related conduct. A strictly literal reading of this language
also appears to exclude payment of the Administration
Aldermen’s attorneys’ fees in the redistricting litigation, as
they intervened as defendants. It plausibly could be argued
that the ordinance, broadly construed, would allow payment
of the Administration Aldermen’s attorneys’ fees; as
defendant-intervenors, they were aligned with the City
officials against whom the redistricting claims were origi-
nally instituted. But even the most expansive interpretation
of § 2-152-170 would not encompass claims “instituted by”
elected officials against the City or its officers, and that
necessarily excludes the Opposition Aldermen’s request for
attorneys’ fees from the scope of the ordinance.
  The ordinance on its face thus classifies City officials and
employees in a way that discriminates against the Opposi-
tion Aldermen: officials and employees who are sued in
their official capacities get their attorneys’ fees paid, but
10                                   Nos. 04-2755 & 04-4009

officials and employees who sue the City do not. But the
Opposition Aldermen have specifically disavowed any facial
constitutional challenge to § 2-152-170; they have charac-
terized their claim as an “as applied” challenge to the City’s
unequal enforcement of its “funding ordinances,” presum-
ably including § 2-152-170. The district court treated the
actual terms of § 2-152-170 as unimportant for purposes of
equal protection analysis: “Regardless of the ordinance’s
‘proper’ interpretation,” the court said, “the City, which
voluntarily chose to reimburse the Roti aldermen notwith-
standing their status as plaintiffs . . . must now live with
those decisions and treat other plaintiff-aldermen in like
fashion.”
  We cannot agree. First, the proper interpretation of a
statute is hardly irrelevant to a determination of the
statute’s constitutionality, either on its face or as ap-
plied. “There can be little doubt that [the question of]
whether a statute is constitutional fairly includes the
question of what the statute says.” Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 126 S. Ct. 1297, 1305
(2006). Second, a prior misapplication of the ordinance—if
that’s what occurred in the Roti cases—does not estop the
City from applying it correctly in a subsequent case. The
Equal Protection Clause does not entitle the Opposition
Aldermen to a misinterpretation of the ordinance. Because
§ 2-152-170 does not authorize payment of their attorneys’
fees, the district court’s conclusion that the City applied the
ordinance “unequally with respect to Plaintiffs” is legally
untenable. So there must be some other basis for the equal
protection claim apart from an “as applied” challenge to the
attorneys’ fees ordinance.
  The alternative conceptualization of the claim offered
up by the Opposition Aldermen has its own deficiencies. In
their brief they argued that the district court “correctly
found” the City had no rational basis for its “inconsistent
application of its funding ordinances”—apparently not just
Nos. 04-2755 & 04-4009                                     11

§ 2-152-170 but other, unspecified funding ordinances as
well. This overstates the district court’s holding, at least as
the court purported to limit it. In a footnote to the Memo-
randum Opinion and Order filed following the bench trial,
the court specifically noted that although the “[p]laintiffs
have offered some evidence that the City paid the legal
expenses . . . from sources besides § 2-172-150,” the court
was confining its analysis to § 2-152-170. At the same time,
however, the district court’s opinion assumes the existence
of authority to pay aldermen’s attorneys’ fees apart from
that conferred by § 2-152-170; that much is implicit in the
court’s holding that the City had no rational basis to deny
the Opposition Aldermen’s request for fees while granting
the requests of other aldermen who would arguably be
excluded from the scope of the ordinance. Also, the opinion
variously uses the plural “fee payment ordinances” or
generically, “ordinances.” Given the internal confusion, we
will give the district court’s holding the broader interpreta-
tion the Opposition Aldermen ascribe to it.
  The Opposition Aldermen did not identify—in their brief
anyway—the other “funding ordinances” they claim the City
inconsistently applied. As we have noted, after oral argu-
ment counsel identified the 1995 Annual Appropriations
Ordinance as the other “funding ordinance” at issue in the
case. Although the district court did not rely on it, it is in
the record. The specific line items counsel identifies appear
to be general funds restricted only by the following lan-
guage: “for legal, technical, medical and professional
services . . . to be expended at the direction of the chairman
of the committee on finance.” It appears we are being asked
to assume that the other Annual Appropriations Ordinances
covering the nine-year duration of the redistricting litiga-
tion contain similar line items and language. (We note as an
aside that this court has previously described the extreme
“protraction” of the redistricting litigation as “absurd.”
Barnett, 141 F.3d at 706.)
12                                      Nos. 04-2755 & 04-4009

  As best we can understand it, then, the equal protection
violation at issue in this case can be summarized as follows:
Without regard to § 2-152-170, the Finance Chairman has
discretion to pay, from a generally unrestricted legal and
professional services fund in the Annual Appropriations
Ordinance, the litigation-related attorneys’ fees incurred by
City officials; Alderman Burke exercised that discretion in
a discriminatory fashion in disallowing the Opposition
Aldermen’s request for payment of attorneys’ fees while
authorizing payment of the Administration Aldermen’s
attorneys’ fees; there is no rational basis for the discrimina-
tory treatment. With that recapitulation of the claim, we
proceed at last to the issues on appeal.2
  The purpose of the Equal Protection Clause of the
Fourteenth Amendment is to “secure every person within
the State’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by express terms of a
statute or by its improper execution through duly consti-
tuted agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562,
564 (2000) (per curiam) (quoting Sioux City Bridge Co. v.
Dakota County, 260 U.S. 441, 445 (1923)); Martin v.
Shawano-Gresham Sch. Dist., 295 F.3d 701, 713-14 (7th
Cir. 2002). Where (as here) no fundamental right or suspect
classification is at issue, equal protection claims are
evaluated under the rational-basis standard of review.



2
   Responsibility for the conceptual confusion in this case rests
squarely with the Opposition Aldermen, who as plaintiffs had
the burden of proof. Given the lack of clarity in their articula-
tion of the fundamentals of their equal protection claim, the
internal confusion in the district court’s opinion is perhaps
understandable. On appeal, the City has not challenged the
district court’s factual findings but raises only legal error in the
application of rational-basis review. We review legal issues
de novo, and that has required us to reset the claim in the proper
conceptual framework.
Nos. 04-2755 & 04-4009                                    13

Discovery House, Inc. v. Consol. City of Indianapolis, 319
F.3d 277, 282 (7th Cir. 2003); Martin, 295 F.3d at 712;
Hilton v. City of Wheeling, 209 F.3d 1005, 1007-08 (7th Cir.
2000). To prevail, a plaintiff must prove the following: (1)
the defendant intentionally treated him differently from
others similarly situated, (2) the defendant intentionally
treated him differently because of his membership in the
class to which he belonged, and (3) the difference in treat-
ment was not rationally related to a legitimate state
interest. Schroeder v. Hamilton Sch. Dist., 282 F.3d 946,
950-51 (7th Cir. 2002); Discovery House, 319 F.3d at 282.
  The district court held that the Opposition Aldermen
satisfied all three elements of this test. More specifically,
the court held that the City discriminated against the
Opposition Aldermen in their request for payment of
attorneys’ fees in the redistricting litigation “because of
their membership in a group that opposed the Referendum
Map espoused by the City” and that there was no rational
basis for the discriminatory treatment. On appeal, the City
concedes the first two elements and focuses its argument on
the district court’s application of the rational-basis test.
  We pause here to note that in the district court, the
parties vigorously disputed how the rational-basis test
should be applied where the equal protection claim is not a
facial attack on a statute but, rather, an “as applied”
challenge, or more accurately here, a challenge to a decision
of a government official acting pursuant to discretionary
authority. The Opposition Aldermen argued in favor of an
approach resembling the burden-shifting paradigm in Title
VII employment discrimination litigation under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Their position
was that in a nonfacial equal protection challenge, evidence
that the government’s reason for decision was pretextual
can establish the claim. The district court properly rejected
this argument. This court has declined previous invitations
to import Title VII methodology into traditional rational-
14                                   Nos. 04-2755 & 04-4009

basis equal protection analysis, see Schroeder, 282 F.3d at
951, and we are not inclined to revisit the issue here.
  Aside from rejecting the Title VII approach, however, the
district court did not definitively resolve the parties’ dispute
over the proper application of the rational-basis test.
Instead, the court engaged in a heavily fact-bound analysis
of the City’s actions and subjected the City’s fees pay-
ment decision to a degree of independent judicial ap-
praisal that is inconsistent with the deferential rational-
basis standard of review.
  The City asserts it was error for the district court to
permit any inquiry at all into the actual motivation for the
City’s payment decision. Because a governmental classifica-
tion “must be upheld against equal protection challenge if
there is any reasonably conceivable state of facts that could
supply a rational basis for the classification,” Heller v. Doe,
509 U.S. 312, 320 (1993) (emphasis added), the Supreme
Court has held that the rational-basis test “is not subject to
courtroom factfinding and may be based on rational specu-
lation unsupported by evidence or empirical data.” FCC v.
Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993). The City
argues that the rational-basis test is not an evidentiary
inquiry into the government’s true motives at the time of
the challenged action, but, rather, a post hoc legal inquiry
into whether there is any conceivable rational reason for the
government’s decision. The Opposition Aldermen counter
that the City’s version of the rational-basis test applies only
to facial equal protection challenges, and theirs is an “as
applied” challenge. As such, they argue, the focus is prop-
erly on evidence of the City’s actual (discriminatory) reason
for the fees payment decision.
  The City is mostly right. To the extent the Opposition
Aldermen insist the focus should be on evidence of discrimi-
natory purpose, their argument is simply misplaced. The
City has conceded that it treated the Opposition Aldermen
Nos. 04-2755 & 04-4009                                     15

differently because of their membership in a group that
opposed the City’s remap ordinance; the only disputed
question is whether that discriminatory treatment had a
rational basis. The rational-basis test is a lenient standard;
the government’s action simply “cannot run afoul of the
Equal Protection Clause if there is a rational relationship
between the disparity of treatment and some legitimate
governmental purpose.” Discovery House, 319 F.3d at 282
(quoting Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356,
367 (2001)) (emphasis added). The government need not
have articulated a reason for the challenged action at the
time the decision was made. Discovery House, 319 F.3d at
282. Rather, “the burden is upon the challenging party to
eliminate any ‘reasonably conceivable state of facts that
could provide a rational basis for the classification.’ ” Id.
(citing Heller, 509 U.S. at 320). This basic formulation
applies whether the plaintiff challenges a statute on its
face, as applied, or (as here) challenges some other act or
decision of government. Id.; see also Bell v. Duperrault, 367
F.3d 703, 708 (7th Cir. 2004); Schroeder, 282 F.3d at 950-
51; Martin, 295 F.3d at 712-13; Hilton, 209 F.3d at 1007-08;
Olech v. Vill. of Willowbrook, 160 F.3d 386, 388 (7th Cir.
1998), aff’d, 528 U.S. 562 (2000) (per curiam); Esmail v.
Macrane, 53 F.3d 176, 180 (7th Cir. 1995).
  This is not to say that evidence of the government’s actual
reason for decision is always irrelevant in equal protection
cases, however. It is the plaintiff’s burden to prove the
government’s action irrational. The government may defend
the rationality of its action on any ground it can muster, not
just the one articulated at the time of decision (if a reason
was given at all.) Our various departments and agencies of
government make thousands of decisions every day; not
every one will come with an explanation. The absence of an
explanation, or even an incomplete, inadequate, or inaccu-
rate explanation will not equate to a lack of rational
basis—otherwise “the federal courts would be drawn deep
16                                   Nos. 04-2755 & 04-4009

into the local enforcement of . . . state and local laws.”
Hilton, 209 F.3d at 1008. Accordingly, the reason stated at
the time of the challenged action may be relevant but is not
dispositive in the application of rationality review.
  We note that the role of subjective motivation in “class of
one” equal protection cases is uncertain. Some of our cases
hold that a determination of “no rational basis” in “class of
one” cases requires proof of “totally illegitimate animus
toward the plaintiff by the defendant” or illegitimate
reasons “of a personal nature unrelated to the duties of the
defendant’s position.” Id.; see also Purze v. Vill. of Winthrop
Harbor, 286 F.3d 452, 455 (7th Cir. 2002); Cruz v. Town of
Cicero, 275 F.3d 579, 587 (7th Cir. 2001); Esmail, 53 F.3d at
180. Other cases use the disjunctive and refer to “class of
one” cases as requiring no rational basis or proof of illegiti-
mate animus. See Lunini v. Grayeb, 395 F.3d 761, 768 (7th
Cir. 2004); Nevel v. Vill. of Schaumburg, 297 F.3d 673, 681
(7th Cir. 2002); Albiero v. City of Kankakee, 246 F.3d 927,
932 (7th Cir. 2001). Still others have noted but not resolved
the conflict. See Ind. Land Co. v. City of Greenwood, 378
F.3d 705, 713 (7th Cir. 2004); McDonald v. Vill. of
Winnetka, 371 F.3d 992, 1002 n.3 (7th Cir. 2004); Bell, 367
F.3d at 708 n.1.
  This is not an “illegitimate animus” equal protection case.
The Opposition Aldermen do not argue that Alderman
Burke’s decision was based on some subjective illegitimate
reason, so we need not attempt to reconcile the “class of
one” cases here. The burden was on the Opposition Alder-
men to eliminate any conceivable rational basis for the
City’s attorneys’ fees decision—not just the basis offered by
Alderman Burke at the time of the denial, but those offered
by the City in defense of this litigation.
  The City argues that a municipality has a legitimate
interest in defending the validity of its ordinances against
legal challenge; the Opposition Aldermen do not really
debate this proposition. The City also argues that it is
Nos. 04-2755 & 04-4009                                     17

entirely rational for a municipality to decline to subsidize
litigation that seeks to invalidate a duly enacted ordinance,
even when those seeking the invalidation are some of its
own elected officials. We agree. However contentious and
divided the City Council may have been during the process
leading up to the referendum, once the referendum was
held, the City had a remapping ordinance on the books.
That law, and the defense of its legality, became the official
position of the City of Chicago and its governing body. The
City was entitled to subsidize the litigation position of the
aldermen who were defending the remap ordinance without
also subsidizing the aldermen who sought to invalidate it.
  This is essentially consistent with the reason Alderman
Burke gave for denying the Opposition Aldermen’s request
for attorneys’ fees; although he cited the attorneys’ fees
ordinance, the underlying rationale was that the City did
not elect to finance litigation against itself. No doubt
politics also factored in, or predominated; that does not
make an otherwise rational decision irrational or render
a legitimate government interest illegitimate.
  “The guarantee of equal protection . . . is not a source of
substantive rights or liberties, but rather a right to be free
from invidious discrimination in statutory classifications
and other governmental activity.” Harris v. McRae, 448 U.S.
297, 322 (1980). Decisions about which activities should
receive government subsidies and which should not are
matters of policy and discretion and are especially inappro-
priate for judicial second-guessing under rational-basis
review. See Regan v. Taxation with Representation of Wash.,
461 U.S. 540, 549 (1983) (granting tax exemptions to
nonprofit veterans’ lobbying organizations while denying
tax exemptions to all other nonprofit lobbying organizations
does not violate equal protection rights of nonexempt
lobbying organization); Harris, 448 U.S. at 326 (upholding
Hyde Amendment against constitutional challenge in which
it was argued, inter alia, that Medicaid’s provision of
18                                  Nos. 04-2755 & 04-4009

medical subsidies to indigent women who carry their
pregnancies to term but not those who undergo abortions
violated equal protection).
  Accordingly, the City’s decision to deny the Opposition
Aldermen’s request for attorneys’ fees while granting the
request of the Administration Aldermen was rationally
related to and furthered the City’s legitimate interest
in defending the legality of its remap ordinance. The only
real dispute here is whether the City is precluded from
relying on this rationale because it failed to adhere to it
in the past, when the City paid the attorneys’ fees for
Alderman Burke’s group of plaintiff-aldermen in the Roti
cases. This was the core of the district court’s holding: that
the City must “live with” this prior decision and confer the
same benefit (forever, apparently) on other aldermen who
sue the City. This proposition is profound and, to our
knowledge, without precedent. As a rule of law, it translates
to this: the government is prohibited, in perpetuity, from
defending itself against an equal protection challenge based
on an otherwise legitimate and rational justification simply
because that justification was not observed in a prior
unrelated action.
   Such a rule would wreak havoc on the orderly operation
of government. We find no support for the proposition that
the Equal Protection Clause so rigidly limits or “locks in”
the government’s decisionmaking discretion in this way.
Government does not lose the right to enforce a legitimate
and rational distinction by virtue of not having enforced
that distinction in an unrelated matter years earlier. The
City’s decision to pay the attorneys’ fees of Alderman
Burke’s group of plaintiff-aldermen in the Roti cases in the
mid-1980s does not foreclose the City from defending
against the present equal protection claim on the basis of
the perfectly rational distinction between aldermanic
litigation in defense of the City’s duly adopted remap
ordinance and aldermanic litigation attacking it.
Nos. 04-2755 & 04-4009                                     19

   To the extent the district court’s decision is premised not
on the difference in treatment between the Opposition
Aldermen and the Administration Aldermen in the redis-
tricting litigation but the difference in treatment between
the Opposition Aldermen and the plaintiff-aldermen in the
Roti cases (a possible alternative reading), the City argues
that the difference was rationally justified by distinctions in
time, political circumstances, and the nature and goals of
the litigation. The “Council Wars” that gave rise to the Roti
cases were characterized by infighting among two alder-
manic factions competing for control of the City Council
following the election of Mayor Washington as the City’s
first black mayor. The first of the Roti cases concerned the
validity of certain resolutions regarding the operation and
organization of the City Council during the political and
legal turmoil that surrounded the redistricting of Chicago’s
aldermanic wards after the 1980 census. The resolutions
were adopted in a chaotic episode in which the mayor
convened a Council meeting but then immediately pur-
ported to adjourn it. Roti I, 450 N.E.2d at 467. The mayor
and the 21 aldermen loyal to him then left the Council
chambers, but 29 aldermen remained and adopted a
number of resolutions pertaining to the number of standing
committees, committee assignments, and other organiza-
tional changes. The mayor then vetoed some of the resolu-
tions.
  The group of 29 aldermen quickly went to Illinois state
court seeking a declaration that the resolutions had been
lawfully adopted. The mayor responded with a suit of his
own seeking to enjoin implementation of the resolutions.
The lawsuits were consolidated and the 21 aldermen
aligned with the mayor intervened on his side. The Illinois
court held that the resolutions were validly adopted because
the mayor’s attempt to adjourn the Council meeting was
invalid, as were his vetoes; the state appellate court
affirmed. Id. at 472-76. The second of the Roti cases was
20                                   Nos. 04-2755 & 04-4009

essentially the reverse of the first; it concerned the validity
of a new resolution that reorganized the City Council once
again after the conclusion of the redistricting litigation
produced an even 25-25 split among the aldermen. Roti II,
500 N.E.2d at 464-65. The former aldermanic group of 29
(now reduced to 25) filed a declaratory judgment action in
state court alleging that the new organizational resolution
was improperly promulgated. The Illinois court held the
resolution was validly adopted, and the state appellate
court affirmed. Id. at 468.
  The City suggests that the extraordinary political circum-
stances of the “Council Wars” and the legal exigent circum-
stances of the Roti cases provide a rational basis for the
difference in treatment of the plaintiff-aldermen there and
the plaintiff-aldermen here. We agree. The Roti cases raised
the question of whether the City Council was validly
organized and operating; the City had a legitimate and
urgent interest in an authoritative legal determination of
this question so the power struggle would not paralyze the
affairs of municipal government or call into question the
legitimacy of subsequent actions taken by the Council.
Payment of both sides’ attorneys’ fees furthered that
interest. On the other hand, the redistricting litigation of
the 1990s did not threaten the very operation of the City
Council or the legitimacy of its actions. There was no
question that the remap ordinance had been validly adopted
in the referendum vote and was law, and the City therefore
had a legitimate interest in defending it against legal
challenge. Declining to subsidize the aldermen who sued to
invalidate the ordinance furthered that interest. The
difference in treatment between the two groups of plaintiff-
aldermen was not irrational.
  At bottom, the Opposition Aldermen are complaining
about what they perceive to be political gamesmanship, but
political gamesmanship—if that’s what Alderman Burke
was up to—does not work an equal protection violation
Nos. 04-2755 & 04-4009                                     21

unless the resulting decision lacks any rational basis. Even
in “illegitimate animus” equal protection cases, “if the
government would have taken the action anyway [absent
the animus], the animus will not condemn the action.”
Nevel, 297 F.3d at 681; see also Albiero, 246 F.3d at 932;
Olech, 160 F.3d at 388.
   “The problems of government are practical ones and they
may justify, if they do not require, rough accommoda-
tions,—illogical, it may be, and unscientific.” Metropolis
Theater Co. v. City of Chi., 228 U.S. 61, 69-70 (1913). The
rational-basis test is deferential to the decisions of govern-
ment, but the district court applied it as if it were a
more exacting standard, insisting on a degree of consistency
that the Equal Protection Clause does not require. “Mere
errors of government are not subject to our judicial review.
It is only palpably arbitrary exercises which can be declared
void under the 14th Amendment.” Id. at 70. The City’s
refusal to pay the legal expenses of the Opposition Alder-
men as plaintiffs in the redistricting litigation was ratio-
nally related to the City’s legitimate interest in defending
the legality of its ordinances; there was no equal protection
violation here.


B. First Amendment Claim
  The First Amendment does not provide an alternative
basis upon which to uphold the judgment. In their free
speech claim, the Opposition Aldermen asserted that the
City engaged in viewpoint discrimination by refusing to pay
their attorneys’ fees in the redistricting litigation while
agreeing to pay those of the Administration Aldermen. The
district court properly rejected this argument. It is well-
established that the government’s “decision not to subsidize
the exercise of a fundamental right does not infringe the
right.” Regan, 461 U.S. at 549. The Supreme Court has
22                                    Nos. 04-2755 & 04-4009

“soundly rejected” the proposition that “if the government
chooses to subsidize one protected right, it must subsidize
analogous counterpart rights.” Rust v. Sullivan, 500 U.S.
173, 194 (1991).
  As “we have repeated many times, the Constitution,
insofar as it creates or protects liberties, is . . . a charter of
negative liberties.” Hilton, 209 F.3d at 1007 (emphasis
in original). As such, “[t]here is a basic difference be-
tween direct state interference with a protected activity and
state encouragement of an alternative activity consonant
with legislative policy.” Maher v. Roe, 432 U.S. 464, 475
(1977). The Constitution “does not confer an entitlement to
such funds as may be necessary to realize all the advan-
tages of ” a constitutional right. Harris, 448 U.S. at 318.
“[A]lthough government may not place obstacles in the path
of a [person’s] exercise of . . . freedom of [speech], it need not
remove those not of its making.” Regan, 461 U.S. at 550-51
(quoting Harris, 448 U.S. at 316).
  The Opposition Aldermen rely on Rosenberger v. Rector
and Visitors of University Of Virginia, 515 U.S. 819 (1995),
and Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001),
but neither case is applicable here. Rosenberger involved
the question of viewpoint discrimination within a speech
forum created by a student organization fund established by
a public university to encourage a diversity of views from
private speakers. Rosenberger, 515 U.S. at 834. Velazquez
involved a First Amendment challenge to a particular
advocacy restriction in the federal subsidy program that
established the Legal Services Corporation to provide
funding for indigents’ private civil litigation. Velazquez, 531
U.S. at 536.
  This case involves neither a City-created speech forum
nor a generalized City subsidy program for private litiga-
tion. Rather, the City agreed to pay the litigation expenses
of the aldermen who entered the redistricting litigation in
Nos. 04-2755 & 04-4009                                    23

defense of the City’s remap ordinance. The positions of the
City and the Administration Aldermen were thus aligned in
the redistricting litigation, and in that sense, the Adminis-
tration Aldermen’s “speech” was the City’s “speech.” The
government “speaks” when it acts to “promote its own
policies or to advance a particular idea.” Id. at 541.
  The Administration Aldermen’s defense of the legality
of the remap ordinance plainly promoted the City’s policy;
the Opposition Aldermen’s legal attack on the ordinance did
not. Velazquez reiterated that “viewpoint-based funding
decisions can be sustained in instances in which the
government is itself the speaker.” Id. Rosenberger and
Velazquez do not support the Opposition Aldermen’s free
speech claim. Rust, Regan, Harris, and Maher foreclose it.
  The judgment of the district court is REVERSED and the
case is REMANDED for entry of judgment for the City of
Chicago.
24                             Nos. 04-2755 & 04-4009

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—8-7-06
