Cite as: 509 U. S. 312 (1993)
Souter, J., dissenting
between the disparity of treatment and some legitimate governmental purpose, which we have previously applied to a classification on the basis of mental disability, see Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 446-447 (1985), and therefore I need not reach the question of whether scrutiny more searching than Cleburne's should be applied.2 Cleburne was the most recent instance in which we addressed a classification on the basis of mental disability, as we did by enquiring into record support for the State's proffered justifications, and examining the distinction in treatment in light of the purposes put forward to support it. See id., at 450. While the Court cites Cleburne once, and does not purport to overrule it, neither does the Court apply it, and at the end of the day Cleburne's status is left uncertain. I would follow Cleburne here.
II
Obviously there are differences between mental retardation and mental illness. They are distinct conditions, they have different manifestations, they require different forms of care or treatment, and the course of each differs. It is without doubt permissible for the State to treat those who are mentally retarded differently in some respects from those who are mentally ill. The question here, however, is whether some difference between the two conditions ration-2 This approach complies with "two of the cardinal rules governing the federal courts: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied," Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 501 (1985) (citations, internal quotation marks, and brackets omitted), and is consistent with our past practice. See, e. g., Hooper v. Bernalillo County Assessor, 472 U. S. 612, 618 (1985) (declining to decide whether to apply heightened scrutiny where classification failed rational-basis test); cf. Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724, n. 9 (1982) (declining to decide whether to apply strict scrutiny where classification could not survive heightened scrutiny).
337
Page: Index Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 NextLast modified: October 4, 2007