336
Souter, J., dissenting
While I may disagree with the Court's basis for its conclusion that this argument is not "properly presented," ante, at 319, I too would decline to address the contention that strict or heightened scrutiny applies. I conclude that the distinctions wrought by the Kentucky scheme cannot survive even that rational-basis scrutiny, requiring a rational relationship
for such discrimination against insanity acquittees who are no longer mentally ill." Foucha, 504 U. S., at 85-86 (plurality opinion of White, J., joined by Blackmun, Stevens, and Souter, JJ.); see also id., at 88 (O'Connor, J., concurring in part and concurring in judgment) ("Although I think it unnecessary to reach equal protection issues on the facts before us, the permissibility of holding an acquittee who is not mentally ill longer than a person convicted of the same crimes could be imprisoned is open to serious question"). Because of the " 'massive curtailment of liberty' " undoubtedly involved in involuntary civil commitment and institutionalization, see Vitek v. Jones, 445 U. S. 480, 491 (1980) (quoting Humphrey v. Cady, 405 U. S. 504, 509 (1972)), Doe argues that heightened scrutiny applies under Foucha when those alleged to be mentally retarded are denied the protection afforded another "obvious and large category" of potential civil committees, those said to be mentally ill.
Doe also argues that the discrimination here has a second aspect that justifies application of strict or heightened scrutiny, in its classification on the basis of mental retardation. Although he recognizes that this Court held in 1985 that retarded individuals are not a quasi-suspect class, see Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 442-447 (1985), he argues that the subsequently enacted Americans With Disabilities Act of 1990 (ADA) amounts to an exercise of Congress's power under § 5 of the Fourteenth Amendment to secure the guarantees of the Equal Protection Clause to the disabled. See Katzenbach v. Morgan, 384 U. S. 641, 651 (1966). The ADA includes findings that people with disabilities (among whom are included those with mental impairments that Doe argues include mental retardation, see 42 U. S. C. § 12102(2)(A) (1988 ed., Supp. III)) "are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society . . . ." § 12101(a)(7). Doe argues that this and other findings, together with expressions of purpose contained in the ADA, amount to a clear indication from Congress "that all individuals with disabilities, including individuals with mental retardation should be treated as a suspect class." Brief for Respondents 29-30.
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