Justice Kennedy, delivered the opinion of the Court.
In the Commonwealth of Kentucky, involuntary civil commitments of those alleged to be mentally retarded and of those alleged to be mentally ill are governed by separate statutory procedures. Two differences between these commitment proceedings are at issue in this case. First, at
I
This case has a long and complicated history. It began in 1982 when respondents filed suit against petitioner, the Kentucky Secretary of the Cabinet for Human Resources, claiming that Kentucky's failure to provide certain procedural protections before institutionalizing people on the basis of mental retardation violated the Constitution. Kentucky has amended its civil commitment statutes several times since 1982, with each new statute being attacked in court by respondents. As the previous incarnations of this lawsuit have little effect on the issues currently before this Court, we limit our discussion to the current round of the litigation. See Doe v. Cowherd, 770 F.Supp. 354, 355-356 (WD Ky. 1991) (recounting the procedural history).
At issue here are elements of Kentucky's statutory procedures, enacted in 1990, for the involuntary commitment of the mentally retarded. In many respects the procedures
If both qualified professionals certify that the individual meets the criteria for involuntary commitment, the trial court must conduct a preliminary hearing. § 202B.130 (mental retardation); § 202A.061 (mental illness). At the hearing, the court must receive as evidence the reports of these two professionals and any other professional retained under the statute. § 202B.160(1) (mental retardation); § 202A.076(1) (mental illness). The individual whose commitment is sought may testify and may call and cross-examine witnesses. § 202B.160(1) (mental retardation); § 202A.076(1) (mental illness). In cases of mental retardation, at both the preliminary hearing and, if there is one, the final hearing,
See also § 202B.230. If the trial court determines that there is probable cause to believe that the subject should be involuntarily committed, it proceeds to a final hearing. § 202B.100(8) (mental retardation); § 202A.051(9) (mental illness).
At the final hearing, the State, through the county attorney for the county in which the person subject to the proceeding lives, prosecutes the petition, § 202B.019 (mental retardation); § 202A.016 (mental illness); Tr. of Oral Arg. 33-35, and counsel for the person defends against institutionalization, id., at 31, 34, 54. At this hearing, "[t]he manner of proceeding and the rules of evidence shall be the same as those in any criminal proceeding." § 202B.160(2) (mental retardation); § 202A.076(2) (mental illness). As in the preliminary hearing, the subject of the proceedings may testify and call and cross-examine witnesses. § 202B.160(2) (mental retardation); § 202A.076(2) (mental illness). In proceedings for commitment based on mental retardation, the standard of proof is clear and convincing evidence, § 202B.160(2); for mental illness, the standard is proof beyond a reasonable doubt, § 202A.076(2). For commitment of the mentally retarded, four propositions must be proved by clear and convincing evidence: "(1) The person is a mentally retarded person; (2) The person presents a danger or a threat of danger to self, family, or others; (3) The least restrictive alternative mode of treatment presently available requires placement in [a
After enactment of the 1990 modifications, respondents moved for summary judgment in their pending lawsuit against petitioner. They argued, among other things, that the differences in treatment between the mentally retarded and the mentally ill—the different standards of proof and the right of immediate family members and guardians to participate as parties in commitment proceedings for the mentally retarded but not the mentally ill—violated the Equal Protection Clause's prohibition of distinctions that lack a rational basis, and that participation by family members and guardians violated the Due Process Clause. The District Court for the Western District of Kentucky accepted these arguments and granted summary judgment to respondents on these and other grounds not at issue here, 770 F.Supp. 354 (1991), and the Court of Appeals for the Sixth Circuit affirmed, Doe v. Cowherd, 965 F.2d 109 (1992). We granted Kentucky's petition for certiorari, 506 U.S. 939 (1992), and now reverse.
II
Respondents contend that, in evaluating the constitutionality of the distinctions drawn by Kentucky's statutes, we should apply not rational-basis review, but some form of
III
We many times have said, and but weeks ago repeated, that rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). See also, e. g., Dandridge v. Williams, 397 U.S. 471, 486 (1970). Nor does it authorize "the judiciary [to] sitas a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam). For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity.
A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Beach Communications, supra, at 315. See also, e. g., Vance v. Bradley, supra, at 111; Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812 (1976); Locomotive Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 139 (1968). A statute is presumed constitutional, see supra, at 319, and "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it," Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973) (internal quotation marks omitted), whether or not the basis has a foundation in the
True, even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation. That requirement is satisfied here. Kentucky has proffered more than adequate justifications for the differences in treatment between the mentally retarded and the mentally ill.
A
Kentucky argues that a lower standard of proof in commitments for mental retardation follows from the fact that mental retardation is easier to diagnose than is mental illness. That general proposition should cause little surprise, for mental retardation is a developmental disability that becomes apparent before adulthood. See American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders
This difference between the two conditions justifies Kentucky's decision to assign a lower standard of proof in commitment proceedings involving the mentally retarded. In assigning the burden of proof, Kentucky was determining the "risk of error" faced by the subject of the proceedings. Addington v. Texas, supra, at 423. If diagnosis is more difficult in cases of mental illness than in instances of mental retardation, a higher burden of proof for the former tends to equalize the risks of an erroneous determination that the subject of a commitment proceeding has the condition in question.
There is, moreover, a "reasonably conceivable state of facts," Beach Communications, 508 U. S., at 313, from which Kentucky could conclude that the second prerequisite to commitment—that "[t]he person presents a danger or a threat of danger to self, family, or others," Ky. Rev. Stat. Ann. § 202B.040 (Michie 1991)—is established more easily, as a general rule, in the case of the mentally retarded. Previous instances of violent behavior are an important indicator of future violent tendencies. See, e. g., J. Monahan, The Clinical Prediction of Violent Behavior 71-72 (1981) (hereinafter Monahan); Kozol, Boucher, & Garofalo, The Diagnosis and Treatment of Dangerousness, 18 Crime & Delinquency 371, 384 (1972). Mental retardation is a permanent, relatively static condition, see Mentally Disabled 37, so a determination of dangerousness may be made with some accuracy based on previous behavior. We deal here with adults only, so almost by definition in the case of the retarded there is an 18-year record upon which to rely.
This is not so with the mentally ill. Manifestations of mental illness may be sudden, and past behavior may not be an adequate predictor of future actions. Prediction of future behavior is complicated as well by the difficulties inherent
A statutory classification fails rational-basis review only when it "`rests on grounds wholly irrelevant to the achievement of the State's objective.' " Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71 (1978), quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961). See also, e. g., McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 809 (1969); Kotch v. Board of River Port Pilot Comm'rs for Port of New Orleans, 330 U.S. 552, 556 (1947). Because ease of diagnosis is relevant to two of the four inquiries, it is not "wholly irrelevant" to the achievement of Kentucky's objective, and thus the statutory difference in the applicable burden of proof survives rational-basis review. In any event, it is plausible for Kentucky to have found that, for purposes of determining the acceptable risk of error, diagnosis and dangerousness are the most critical factors in the commitment decision, so the appropriate burden of proof should be tied to them.
There is a further, more far-reaching rationale justifying the different burdens of proof: The prevailing methods of treatment for the mentally retarded, as a general rule, are much less invasive than are those given the mentally ill. The mentally ill are subjected to medical and psychiatric treatment which may involve intrusive inquiries into the patient's innermost thoughts, see Meissner & Nicholi, The Psychotherapies:
It is true that the loss of liberty following commitment for mental illness and mental retardation may be similar in many respects; but the different treatment to which a committed individual is subjected provides a rational basis for Kentucky to decide that a greater burden of proof is needed before a person may be committed for mental illness. The procedures required before the government acts often depend on the nature and extent of the burden or deprivation to be imposed. See Addington v. Texas, 441 U. S., at 423-424. For example, because confinement in prison is punitive and hence more onerous than confinement in a mental hospital, id., at 428, the Due Process Clause subjects the former to proof beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970), whereas it requires in the latter case only clear and convincing evidence, Addington v. Texas, supra. It may also be true that some persons committed for mental retardation are subjected to more intrusive treatments while
These distinctions may explain, too, the differences in treatment between the mentally retarded and the mentally ill that have long existed in Anglo-American law. At English common law there was a "marked distinction" in the treatment accorded "idiots" (the mentally retarded) and "lunatics" (the mentally ill). 1 F. Pollock & F. Maitland, The History of English Law 481 (2d ed. 1909) (hereinafter Pollack and Maitland). As Blackstone explained, a retarded person became a ward of the King, who had a duty to preserve the individual's estate and provide him with "necessaries," but the King could profit from the wardship. In contrast, the King was required to "provide for the custody and sustentation of [the mentally ill], and preserve their lands and the profits of them," but the King was prohibited from profiting thereby. 1 W. Blackstone, Commentaries *302-*304. See Pollack and Maitland 481; S. Herr, Rights and Advocacy for Retarded People 9-10 (1983).
Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. That the law has long treated the classes as distinct, however, suggests that there is a commonsense distinction between the mentally
Kentucky's burden of proof scheme, then, can be explained by differences in the ease of diagnosis and the accuracy of the prediction of future dangerousness and by the nature of the treatment received after commitment. Each of these rationales, standing on its own, would suffice to establish a rational basis for the distinction in question.
B
There is a rational basis also for the other distinction challenged by respondents: that Kentucky allows close relatives
Mental illness, by contrast, may arise or manifest itself with suddenness only after minority, see supra, at 322, when the afflicted person's immediate family members have no knowledge of the medical condition and have long ceased to provide care and support. Further, determining the proper course of treatment may be far less dependent upon observations made in a household setting. Indeed, we have noted the severe difficulties inherent in psychiatric diagnosis conducted by experts in the field. Addington v. Texas, 441 U. S., at 430. See also Mentally Disabled 18. In addition, adults previously of sound mental health who are diagnosed as mentally ill may have a need for privacy that justifies the State in confining a commitment proceeding to the smallest group compatible with due process. Based on these facts, Kentucky may have concluded that participation as parties by relatives and guardians of the mentally ill would not in most cases have been of sufficient help to the trier of fact to justify the additional burden and complications of granting party status. To be sure, Kentucky could have provided relatives
IV
We turn now to respondents' claim that one aspect of the involuntary commitment procedures violates procedural due process. We note at the outset that respondents challenge as violative of due process only those provisions of Kentucky's comprehensive involuntary commitment procedures that allow participation in the proceedings by guardians and immediate family members. See Ky. Rev. Stat. Ann. §§ 202B.140, 202B.160(3), 202B.230 (Michie 1991). Respondents claim that by allowing the participation of persons whose interests may be adverse to those of the individual facing possible involuntary commitment, the statute "skews the balance" against the retarded individual and therefore imposes a burden on him. Brief for Respondents 32-36. Both courts below apparently accepted this argument, almost without explanation. See 965 F. 2d, at 113; 770 F. Supp., at 358. In our view, the claim is without merit.
We evaluate the sufficiency of this procedural rule under Mathews v. Eldridge, 424 U.S. 319 (1976). There we held that determining the dictates of due process requires consideration of three factors:
We think that application of the Mathews v. Eldridge factors compels the conclusion that participation as parties by close relatives and legal guardians is not a deprivation of due process. Even if parents, close family members, or legal guardians can be said in certain instances to have interests "adverse to [those of] the person facing commitment," 965 F. 2d, at 113, we simply do not understand how their participation as formal parties in the commitment proceedings increases "the risk of an erroneous deprivation," 424 U. S., at 335, of respondents' liberty interest. Rather, for the reasons explained, supra, at 329, these parties often will have valuable information that, if placed before the court, will increase the accuracy of the commitment decision. Kentucky law, moreover, does not allow intervention by persons who lack a personal stake in the outcome of the adjudication. Guardians have a legal obligation to further the interests of their wards, and parents and other close relatives of a mentally retarded person, after living with and caring for the individual for 18 years or more, have an interest in his welfare that the State may acknowledge. See Parham v. J. R., 442 U.S. 584, 602-603 (1979). For example, parents who for 18 years or longer have cared for a retarded child can face changed circumstances resulting from their own advancing age, when the physical, emotional, and financial costs of caring for the adult child may become too burdensome for the child's best interests to be served by care in their home. There is no support whatever in our cases or our legal tradition for the "statist notion," id., at 603, that the State's expertise and concern in these matters is so superior to that of parents and other close family members that the State must
To be sure, if the additional parties involved in the proceedings favor commitment, their participation may increase the chances that the result of the proceeding will be a decision to commit. That fact, however, is beside the point. "The Due Process Clause does not . . . require a State to adopt one procedure over another on the basis that it may produce results more favorable to" the party challenging the existing procedures. Medina v. California, 505 U.S. 437, 451 (1992).
See also Fuentes v. Shevin, 407 U.S. 67, 97 (1972) (due process functions to "prevent unfair and mistaken deprivations"). At least to the extent protected by the Due Process Clause, the interest of a person subject to governmental action is in the accurate determination of the matters before the court, not in a result more favorable to him. So long as the accuracy of the adjudication is unaffected, therefore, the Due Process Clause does not prevent a State from allowing the intervention of immediate family members and legal guardians,
Because allowing guardians and immediate family members to participate as parties in commitment proceedings increases the accuracy of those proceedings and implements the State's interest in providing family members a voice in the proceedings, without undermining those interests of the individual protected by the Due Process Clause, these Kentucky statutes do not run afoul of due process. "We deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context, restraint is appropriate on the part of courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution." Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 855-856 (1977).
V
In sum, there are plausible rationales for each of the statutory distinctions challenged by respondents in this case. It could be that "[t]he assumptions underlying these rationales [are] erroneous, but the very fact that they are `arguable' is sufficient, on rational-basis review, to `immunize' the [legislative] choice from constitutional challenge." Beach Communications, 508 U. S., at 320, quoting Vance v. Bradley, 440 U. S., at 112.
Reversed.
Justice O'Connor, concurring in the judgment in part and dissenting in part.
I agree with Justice Souter that Kentucky's differential standard of proof for committing the mentally ill and the mentally retarded is irrational and therefore join Part II of his opinion. I conclude, however, that there is a rational basis for permitting close relatives and guardians to participate as parties in proceedings to commit the mentally retarded but not the mentally ill. As the Court points out, there are sufficiently plausible and legitimate reasons for the legislative determination in this area. I also agree with the Court that allowing guardians and immediate family members to participate as parties in commitment proceedings does not violate procedural due process. Like my colleagues, I would not reach the question whether heightened equal protection scrutiny should be applied to the Kentucky scheme.
Justice Blackmun, dissenting.
I join Justice Souter's dissenting opinion, for I agree with him that this statute is not even rational. I write separately
Justice Souter, with whom Justice Blackmun and Justice Stevens join, and with whom Justice O'Connor joins as to Part II, dissenting.
Because I conclude that Kentucky's provision of different procedures for the institutionalization of the mentally retarded and the mentally ill is not supported by any rational justification, I respectfully dissent.
I
To begin with, the Court declines to address Doe's argument that we should employ strict or heightened scrutiny in assessing the disparity of treatment challenged 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 rationally
The first distinction wrought by the statute is the imposition of a lesser standard of proof for involuntary institutionalization where the alleged basis of a need for confinement is mental retardation rather than mental illness. As the Court observes, four specific propositions must be proven before a person may be involuntarily institutionalized on the basis of mental retardation: "that: (1) [t]he person is a mentally retarded person; (2) [t]he person presents a danger or a threat of danger to self, family, or others; (3) [t]he least restrictive alternative mode of treatment presently available requires placement in [a state-run institution]; and (4) [t]reatment that can reasonably benefit the person is available in [a state-run institution]." Ky. Rev. Stat. Ann. § 202B.040 (Michie 1991). At issue in this case is only the application of this provision to adults who have not been shown to be mentally retarded, but who are simply alleged to be. The subject of such a proceeding retains as full an interest in liberty as anyone else. The State of Kentucky has deemed this liberty interest so precious that, before one may be institutionalized on the basis of mental illness, the statutory prerequisites must be shown "beyond a reasonable doubt." § 202A.076(2).
In upholding this disparate treatment, the Court relies first on the State's assertion that mental retardation is easier to diagnose than mental illness. It concludes that the discrimination in burdens of proof is rational because the lessened "`risk of error' " resulting from the higher burden of proof, see ante, at 322 (quoting Addington v. Texas, 441 U.S. 418, 423 (1979)), can be understood to offset a greater "ris[k] of an erroneous determination that the subject of a commitment proceeding has the condition in question" when the allegation is one of mental illness rather than mental retardation, ante, at 322. The Court reaches essentially the same conclusion with respect to the second prerequisite, that the individual present a danger or threat of danger to himself or others. See ante, at 324 (a determination of dangerousness may be made with "more accura[cy]" with respect to the mentally retarded than the mentally ill).
In concluding, however, that the demands of minimal rationality are satisfied if burdens of proof rise simply with difficulties of proof, the Court misunderstands the principal object in setting burdens. It is no coincidence that difficult issues in civil cases are not subject to proof beyond a reasonable doubt and that even the most garden variety elements in criminal cases are not to be satisfied by a preponderance of evidence. The reason for this is that burdens of proof are assigned and risks of error are allocated not to reflect the mere difficulty of avoiding error, but the importance of avoiding it as judged after a thorough consideration of those respective interests of the parties that will be affected by the allocation. See Addington, 441 U. S., at 425.
In a civil commitment proceeding, on the State's side of the balance, are the interests of protecting society from those posing dangers and protecting the ill or helpless individual from his own incapacities. Id., at 426. On the other
The question whether a lower burden of proof is rationally justified, then, turns not only on whether ease of diagnosis and proof of dangerousness differ as between cases of illness and retardation, but also on whether there are differences in the respective interests of the public and the subjects of the commitment proceedings, such that the two groups subject to commitment can rationally be treated differently by imposing a lower standard of proof for commitment of the retarded.
The Court also rests its conclusion on the view that "it would have been plausible for the Kentucky Legislature to believe that most mentally retarded individuals who are
Neither of these propositions tells us, however, that the same invasive mind-altering medication prescribed for mental illness is not also used in responding to mental retardation. And in fact, any apparent plausibility in the Court's suggestion that "the mentally retarded in general are not subjected to th[is] medical treatmen[t]," ibid., dissipates the moment we examine readily available material on the subject, including studies of institutional practices affecting the retarded comparable to those studies concerning the treatment of mental illness cited by the Court. One recent examination of institutions for the mentally retarded in Kentucky's neighboring State of Missouri, for example, found that 76% of the institutionalized retarded receive some type of psychoactive drug and that fully 54% receive psychotropic drugs. See Intagliata & Rinck, Psychoactive Drug Use in Public and Community Residential Facilities for Mentally Retarded Persons, 21 Psychopharmacology Bull. 268, 272-
Psychotropic drugs, according to the available material, are not only used to treat the institutionalized retarded, but are often misused. Indeed, the findings of fact by a United States District Court in North Carolina, another State nearby Kentucky, show that in three hospitals, 73% of persons committed as mentally retarded were receiving antipsychotic drugs. Less than half of these individuals had been diagnosed as mentally ill as well as mentally retarded following their commitment on the latter ground. See Thomas S. v. Flaherty, 699 F.Supp. 1178, 1187 (WDNC 1988), aff'd, 902 F.2d 250 (CA4), cert. denied, 498 U.S. 951-952 (1990). The District Court found that the institutionalized retarded plaintiffs "have been seriously endangered and injured by the inappropriate use of antipsychotic drugs." Flaherty, supra, at 1186. See also Halderman v. Pennhurst State School Hospital, 446 F.Supp. 1295, 1307-1308 (ED Pa. 1977) (discussing evidence that 51% of the residents of a state institution for the mentally retarded received psychotropic drugs though less than one-third of those who received the drugs were monitored to determine the effectiveness of the treatment), aff'd, 612 F.2d 84 (CA3 1979), rev'd on other grounds, 451 U.S. 1 (1981); Bates, Smeltzer, & Arnoczky, Appropriate and Inappropriate Use of Psychotherapeutic
These facts are consistent with a law review study of drugs employed in treating retardation, which observed that the reduction in the need for institutional staff resulting from the use of sedating drugs has promoted drug use in responding to retardation despite "frightening adverse effects [including the suppression of] learning and intellectual development." Plotkin & Gill, Invisible Manacles: Drugging Mentally Retarded People, 31 Stan. L. Rev. 637, 638 (1979). There being nothing in the record to suggest that Kentucky's institutions are free from these practices, and no reason whatever to assume so, there simply is no plausible basis for the Court's assumption that the institutional response to mental retardation is in the main less intrusive in this way than treatment of mental illness.
The Court also suggests that medical treatment for the mentally retarded is less invasive than in the case of the mentally ill because the mentally ill are subjected to psychiatric treatment that may involve intrusive enquiries into the patient's innermost thoughts. See ante, at 324-325. Again, I do not disagree that the mentally ill are often subject to intrusive psychiatric therapy. But the mentally retarded too are subject to intrusive therapy, as the available material on the medical treatment of the mentally retarded demonstrates. The mentally retarded are often subjected to behavior modification therapy to correct, among other things, anxiety disorders, phobias, hyperactivity, and antisocial behavior, therapy that may include aversive conditioning as well as forced exposure to objects that trigger severe anxiety reactions. See McNally, Anxiety and Phobias, in Handbook of Mental Retardation 413-423; Mulick, Hammer, & Dura, Assessment and Management of Antisocial and Hyperactive Behavior, in
The same sorts of published authorities on which the Court relies, in sum, refute the contention that "[t]he prevailing methods of treatment for the mentally retarded, as a general rule, are much less invasive than are those given the mentally ill." Ante, at 324.
III
With respect to the involvement of family members and guardians in the commitment proceeding, the Court holds it to be justified by the fact that mental retardation "has its onset during a person's developmental period," while mental illness "may arise or manifest itself with suddenness only after minority." Ante, at 329. The Court suggests that a mentally ill person's parents may have "ceased to provide care and support" for him well before the onset of illness, whereas parents are more likely to have retained connection with a retarded son or daughter, whose "proper course of treatment" may depend on matters related to "observations made in a household setting." Ibid.
These suggested distinctions, if true, would apparently not apply to guardians, whose legal obligations to protect the persons and estates of their wards would seem to require as much connection to the one class of people as to the other.
The Court simply points to no characteristic of mental retardation that could rationally justify imposing this burden of a second prosecutor on those alleged to be mentally retarded where the State has decided not to impose it upon those alleged to be mentally ill. Even if we assumed a generally more regular connection between the relatives and guardians of those alleged to be retarded than those said to
The same may be said about the Court's second suggested justification, that the mentally ill may have a need for privacy not shown by the retarded. Even assuming the ill need some additional privacy, and that participation of others in the commitment proceeding should therefore be limited "to the smallest group compatible with due process," ante, at 329, why should the retarded be subject to a second prosecutor? The Court provides no answer.
Without plausible justification, Kentucky is being allowed to draw a distinction that is difficult to see as resting on anything other than the stereotypical assumption that the retarded are "perpetual children," an assumption that has historically been taken to justify the disrespect and "grotesque mistreatment" to which the retarded have been subjected. See Cleburne, 473 U. S., at 454 (Stevens, J., concurring) (internal quotation marks and citation omitted). As we said in Cleburne, the mentally retarded are not "all cut from the same pattern: . . . they range from those whose disability is not immediately evident to those who must be constantly cared for." Id., at 442. In recent times, at least when imposing the responsibilities of citizenship, our jurisprudence has seemed to reject the analogy between mentally retarded adults and nondisabled children. See, e. g., Penry v. Lynaugh, 492 U.S. 302, 338 (1989) (controlling opinion of O'Connor, J.) (not "all mentally retarded people . . .— by virtue of their mental retardation alone, and apart from any individualized consideration of their personal responsibility—inevitably lack the cognitive, volitional, and moral capacity to act with the degree of culpability associated with the death penalty"); see also id., at 340 ("reliance on mental
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.
FootNotes
Briefs of amici curiae urging affirmance were filed for the American Association on Mental Retardation et al. by James W. Ellis and Maureen A. Sanders; and for Focus on Community Understanding and Services, Inc., et al. by Ronald L. Smith and Michael Kirkman.
John Townsend Rich, Christopher E. Palmer, and Leonard S. Rubenstein filed a brief for the Mental Health Law Project as amicus curiae.
But see Minn. Stat. § 253B.07 et seq. (1992) (mental retardation and mental illness); Miss. Code Ann. § 41-21-61 et seq. (Supp. 1992) (mental retardation and mental illness); N. C. Gen. Stat. § 122C-261 et seq. (1989 and Supp. 1992) (mental retardation and mental illness); Wash. Rev. Code § 71.05.150 et seq. (1992 and Supp. 1993) (mental retardation and mental illness); W. Va. Code § 27-5-2 et seq. (1992) (mental retardation and mental illness); Wis. Stat. § 51.20 (1989-1990) (mental retardation and mental illness).
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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