Cite as: 509 U. S. 312 (1993)
Souter, J., dissenting
rately only to note my continuing adherence to the view that laws that discriminate against individuals with mental retardation, Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 455 (1985) (opinion of Marshall, J., joined by Brennan and Blackmun, JJ.), or infringe upon fundamental rights, Foucha v. Louisiana, 504 U. S. 71, 84-86 (1992) (plurality opinion of White, J., joined by Blackmun, Stevens, and Souter, JJ.), are subject to heightened review.
Justice Souter, with whom Justice Blackmun and Justice Stevens join, and with whom Justice O'Connor joins as to Part II, dissenting.
Because I conclude that Kentucky's provision of different procedures for the institutionalization of the mentally retarded and the mentally ill is not supported by any rational justification, I respectfully dissent.
I
To begin with, the Court declines to address Doe's argument that we should employ strict or heightened scrutiny in assessing the disparity of treatment challenged here.1
1 Doe relies, first, on the nature of the right at stake, citing our decision last Term in Foucha v. Louisiana, 504 U. S. 71 (1992). There we were faced with an equal protection challenge to a Louisiana statute authorizing continued commitment of currently sane insanity acquittees under standards that were not applied to criminal convicts who had completed their prison terms or were about to do so. The insanity acquittee was kept incarcerated in a mental institution unless he could prove he was not dangerous, see La. Code Crim. Proc. Ann., Art. 657 (West Supp. 1993), whereas "Louisiana law," as Justice White wrote, did "not provide for similar confinement for other classes of persons who have committed criminal acts and who cannot later prove they would not be dangerous. Criminals who have completed their prison terms, or are about to do so, are an obvious and large category of such persons . . . . However, state law does not allow for th[e] continuing confinement [of criminals who may be unable to prove they would not be dangerous] based merely on dangerousness. . . . Freedom from physical restraint being a fundamental right, the State must have a particularly convincing reason, which it has not put forward,
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