650
Scalia, J., dissenting
lygamy, it has, of course, been overruled by later cases. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U. S. 24, 53 (1974). Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal protection lodestars—Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 623, and Justice Bradley, who had earlier declared that "class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U. S. 3, 24 (1883), quoted ante, at 635.3
3 The Court labors mightily to get around Beason, see ante, at 634, but cannot escape the central fact that this Court found the statute at issue— which went much further than Amendment 2, denying polygamists not merely special treatment but the right to vote—"not open to any constitutional or legal objection," rejecting the appellant's argument (much like the argument of respondents today) that the statute impermissibly "single[d] him out," Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. The Court adopts my conclusions that (a) insofar as Beason permits the imposition of adverse consequences based upon mere advocacy, it has been overruled by subsequent cases, and (b) insofar as Beason holds that convicted felons may be denied the right to vote, it remains good law. To these conclusions, it adds something new: the claim that "[t]o the extent [Beason] held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome." Ante, at 634. But if that is so, it is only because we have declared the right to vote to be a "fundamental political right," see, e. g., Dunn v. Blumstein, 405 U. S. 330, 336 (1972), deprivation of which triggers strict scrutiny. Amendment 2, of course, does not deny the fundamental right to vote, and the Court rejects the Colorado court's view that there exists a fundamental right to participate in the political process. Strict scrutiny is thus not in play here. See ante, at 631. Finally, the Court's
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