In the case of City of New Orleans et al. v. Dukes, DBA Louisiana Concessions, 1975, the Supreme Court ruled in favor of a city ordinance that prohibited street vendors from operating in the French Quarter of New Orleans with an exception for two vendors who had been doing business there for over eight years. Edwin Dukes challenged this law on equal protection grounds as he was not granted an exemption and his business would be negatively affected by it. The court upheld the ordinance stating that states have broad power to enact legislation affecting economic activity within their borders and such laws are presumed constitutional unless they are arbitrary or irrational. In this case, preserving the character and aesthetics of a historic area was deemed a legitimate state interest justifying differential treatment between old and new businesses.

In the dissenting opinion for City of New Orleans v. Dukes, Justice Brennan disagreed with the majority's decision to uphold a city ordinance that effectively put street vendors out of business unless they had been in operation for over eight years. He argued that this law was not rationally related to its stated purpose of preserving the character and aesthetics of the French Quarter because it arbitrarily exempted two vendors who did not contribute to these goals any more than other vendors. Furthermore, he contended that economic protectionism is an illegitimate state interest under equal protection analysis and thus cannot justify differential treatment among similarly situated individuals or businesses. In his view, such laws only serve private interests at public expense and should be subjected to strict scrutiny rather than rational basis review.