Cite as: 509 U. S. 312 (1993)
Souter, J., dissenting
age to measure the capabilities of a retarded person for purposes of the Eighth Amendment could have a disempowering effect if applied in other areas of the law"). But cf. ante, at 331 (citing Parham v. J. R., 442 U. S. 584 (1979), a case about parents' rights over their minor children). When the State of Kentucky sets up its respective schemes for institutionalization on the basis of mental illness and mental retardation, it too is obliged to reject that analogy, and to rest any difference in standards for involuntary commitment as between the ill and the retarded on some plausible reason.
IV
In the absence of any rational justification for the disparate treatment here either with respect to the burdens of proof or the participation of third parties in institutionalization proceedings, I would affirm the judgment of the Court of Appeals. Because of my conclusion, that the statute violates equal protection, I do not reach the question of its validity under the Due Process Clause.
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