452
Scalia, J., concurring in judgment
it passes rational scrutiny for the reasons he gives for sustaining it under the higher standard. It is unlikely, in my opinion, that any gender classifications based on stereotypes can survive heightened scrutiny, but under rational scrutiny, a statute may be defended based on generalized classifications unsupported by empirical evidence. See Heller v. Doe, 509 U. S. 312, 320 (1993) ("[A] classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification" (internal quotation marks and citations omitted)). This is particularly true when the classification is adopted with reference to immigration, an area where Congress frequently must base its decisions on generalizations about groups of people.
* * *
We adopted the presumption against third-party standing to preserve the court's "properly limited" role, Warth, 422 U. S., at 498, and we have identified a particular set of circumstances that will rebut that presumption. I believe that we should treat those considerations, in particular the hindrance prong, as meaningful criteria. Consequently, I would not accord petitioner standing to raise her father's claim of gender discrimination. Petitioner's own constitutional challenge triggers only rational basis scrutiny, and § 1409 is sustainable under that standard. Accordingly, I concur in the judgment affirming the Court of Appeals' decision.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
I agree with the outcome in this case, but for a reason more fundamental than the one relied upon by Justice Stevens. In my view it makes no difference whether or not
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