City of Cleburne v. Cleburne Living Center, Inc.

U.S. Supreme Court Cleburne v. Cleburne Living Ctr., 473
U.S. 432 (1985) City of Cleburne, Texas v. Cleburne
Living Center, Inc. No. 84-468 Argued March 18, 1985 Reargued April 23,
1985 Decided July 1, 1985 473
U.S. 432 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Respondent Cleburne Living Center, Inc. (CLC), which anticipated
leasing a certain building for the operation of a group home for
the mentally retarded, was informed by petitioner city that a
special use permit would be required, the city having concluded
that the proposed group home should be classified as a "hospital
for the feebleminded" under the zoning ordinance covering the area
in which the proposed home would be located. Accordingly, CLC
applied for a special use permit, but the City Council, after a
public hearing, denied the permit. CLC and others (also respondents
here) then filed suit against the city and a number of its
officials, alleging that the zoning ordinance, on its face and as
applied, violated the equal protection rights of CLC and its
potential residents. The District Court held the ordinance and its
application constitutional. The Court of Appeals reversed, holding
that mental retardation is a "quasi-suspect" classification; that,
under the applicable "heightened scrutiny" equal protection test,
the ordinance was facially invalid because it did not substantially
further an important governmental purpose; and that the ordinance
was also invalid as applied. Held: 1. The Court of Appeals erred in holding mental retardation a
quasi-suspect classification calling for a more exacting standard
of judicial review than is normally accorded economic and social
legislation. Pp. 473 U. S.
439 -447.

															(a) Where individuals in a group affected by a statute have
distinguishing characteristics relevant to interests a State has
the authority to implement, the Equal Protection Clause requires
only that the classification drawn by the statute be rationally
related to a legitimate state interest. When social or economic
legislation is at issue, the Equal Protection Clause allows the
States wide latitude. Pp. 473 U. S.
439 -442.

															(b) Mentally retarded persons, who have a reduced ability to
cope with and function in the everyday world, are thus different
from other persons, and the States' interest in dealing with and
providing for them Page 473 U. S. 433 is plainly a legitimate one. The distinctive legislative
response, both national and state, to the plight of those who are
mentally retarded demonstrates not only that they have unique
problems, but also that the lawmakers have been addressing their
difficulties in a manner that belies a continuing antipathy or
prejudice and a corresponding need for more intrusive oversight by
the judiciary than is afforded under the normal equal protection
standard. Moreover, the legislative response, which could hardly
have occurred and survived without public support, negates any
claim that the mentally retarded are politically powerless in the
sense that they have no ability to attract the attention of the
lawmakers. The equal protection standard requiring that legislation
be rationally related to a legitimate governmental purpose affords
government the latitude necessary both to pursue policies designed
to assist the retarded in realizing their full potential, and to
freely and efficiently engage in activities that burden the
retarded in what is essentially an incidental manner. Pp. 473 U. S.
442 -447.

															2. Requiring a special use permit for the proposed group home
here deprives respondents of the equal protection of the laws, and
thus it is unnecessary to decide whether the ordinance's permit
requirement is facially invalid where the mentally retarded are
involved. Although the mentally retarded, as a group, are different
from those who occupy other facilities -- such as boarding houses
and hospitals -- that are permitted in the zoning area in question
without a special permit, such difference is irrelevant unless the
proposed group home would threaten the city's legitimate interests
in a way that the permitted uses would not. The record does not
reveal any rational basis for believing that the proposed group
home would pose any special threat to the city's legitimate
interests. Requiring the permit in this case appears to rest on an
irrational prejudice against the mentally retarded, including those
who would occupy the proposed group home and who would live under
the closely supervised and highly regulated conditions expressly
provided for by state and federal law. Pp. 473 U. S.
447 -450.

															726 F.2d 191, affirmed in part, vacated in part, and
remanded.

															WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined.
STEVENS, J., filed a concurring opinion, in which BURGER, C.J.,
joined, post, p. 473 U. S. 451 .
MARSHALL, J., filed an opinion concurring in the judgment in part
and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 473 U. S.
455 . Page 473 U. S. 435 JUSTICE WHITE delivered the opinion of the Court.

															A Texas city denied a special use permit for the operation of a
group home for the mentally retarded, acting pursuant to a
municipal zoning ordinance requiring permits for such homes. The
Court of Appeals for the Fifth Circuit held that mental retardation
is a "quasi-suspect" classification, and that the ordinance
violated the Equal Protection Clause because it did not
substantially further an important governmental purpose. We hold
that a lesser standard of scrutiny is appropriate, but conclude
that, under that standard, the ordinance is invalid as applied in
this case. I In July, 1980, respondent Jan Hannah purchased a building at 201
Featherston Street in the city of Cleburne, Texas, with the
intention of leasing it to Cleburne Living Center, Inc. (CLC),
[ Footnote 1 ] for the operation
of a group home for the mentally retarded. It was anticipated that
the home would house 13 retarded men and women, who would be under
the constant supervision of CLC staff members. The house had four
bedrooms and two baths, with a half bath to be added. CLC planned
to comply with all applicable state and federal regulations.
[ Footnote 2 ] Page 473 U. S. 436 The city informed CLC that a special use permit would be
required for the operation of a group home at the site, and CLC
accordingly submitted a permit application. In response to a
subsequent inquiry from CLC, the city explained that, under the
zoning regulations applicable to the site, a special use permit,
renewable annually, was required for the construction of
"[h]ospitals for the insane or feeble-minded, or alcoholic
[ sic ] or drug addicts, or penal or correctional
institutions." [ Footnote 3 ] The
city had determined that the proposed Page 473 U. S. 437 group home should be classified as a "hospital for the
feebleminded." After holding a public hearing on CLC's application,
the City Council voted 3 to 1 to deny a special use permit.
[ Footnote 4 ]

															CLC then filed suit in Federal District Court against the city
and a number of its officials, alleging, inter alia, that
the zoning ordinance was invalid on its face and as applied because
it discriminated against the mentally retarded in violation of the
equal protection rights of CLC and its potential residents. The
District Court found that,

															"[i]f the potential residents of the Featherston Street home
were not mentally retarded, but the home was the same in all other
respects, its use would be permitted under the city's zoning
ordinance,"

															and that the City Council's decision "was motivated primarily by
the fact that the residents of the home would be persons who are
mentally retarded." App. 93, 94. Even so, the District Court held
the ordinance and its application constitutional. Concluding that
no fundamental right was implicated, and that mental retardation
was neither a suspect nor a quasi-suspect classification, the court
employed the minimum level of judicial scrutiny applicable to equal
protection claims. The court deemed the ordinance, as written and
applied, to be rationally related to the city's legitimate
interests in "the legal responsibility of CLC and its residents, .
. . the safety and fears of residents in the adjoining
neighborhood," and the number of people to be housed in the home.
[ Footnote 5 ] Id. at
103.

															The Court of Appeals for the Fifth Circuit reversed, determining
that mental retardation was a quasi-suspect classification and that
it should assess the validity of the ordinance Page 473 U. S. 438 under intermediate-level scrutiny. 726 F.2d 191 (1984). Because
mental retardation was in fact relevant to many legislative
actions, strict scrutiny was not appropriate. But in light of the
history of "unfair and often grotesque mistreatment" of the
retarded, discrimination against them was "likely to reflect
deep-seated prejudice." Id. at 197. In addition, the
mentally retarded lacked political power, and their condition was
immutable. The court considered heightened scrutiny to be
particularly appropriate in this case, because the city's ordinance
withheld a benefit which, although not fundamental, was very
important to the mentally retarded. Without group homes, the court
stated, the retarded could never hope to integrate themselves into
the community. [ Footnote 6 ]
Applying the test that it considered appropriate, the court held
that the ordinance was invalid on its face because it did not
substantially further any important governmental interests. The
Court of Appeals went on to hold that the ordinance was also
invalid as applied. [ Footnote
7 ] Rehearing en banc was Page 473 U. S. 439 denied with six judges dissenting in an opinion urging en banc
consideration of the panel's adoption of a heightened standard of
review. We granted certiorari, 469 U.S. 1016 (1984). [ Footnote 8 ] II The Equal Protection Clause of the Fourteenth Amendment commands
that no State shall "deny to any person within its jurisdiction the
equal protection of the laws," which is essentially a direction
that all persons similarly situated should be treated alike. Plyler v. Doe, 457 U. S. 202 , 457 U. S. 216 (1982). Section 5 of the Amendment empowers Congress to enforce
this mandate, but absent controlling congressional direction, the
courts have themselves devised standards for Page 473 U. S. 440 determining the validity of state legislation or other official
action that is challenged as denying equal protection. The general
rule is that legislation is presumed to be valid, and will be
sustained if the classification drawn by the statute is rationally
related to a legitimate state interest. Schweiker v.
Wilson, 450 U. S. 221 , 450 U. S. 230 (1981); United States Railroad Retirement Board v. Fritz, 449 U. S. 166 , 449 U. S.
174 -175 (1980); Vance v. Bradley, 440 U. S.
93 , 440 U. S. 97 (1979); New Orleans v. Dukes, 427 U.
S. 297 , 427 U. S. 303 (1976). When social or economic legislation is at issue, the Equal
Protection Clause allows the States wide latitude, United
States Railroad Retirement Board v. Fritz, supra, at 449 U. S. 174 ; New Orleans v. Dukes, supra, at 427 U. S. 303 ,
and the Constitution presumes that even improvident decisions will
eventually be rectified by the democratic processes.

															The general rule gives way, however, when a statute classifies
by race, alienage, or national origin. These factors are so seldom
relevant to the achievement of any legitimate state interest that
laws grounded in such considerations are deemed to reflect
prejudice and antipathy -- a view that those in the burdened class
are not as worthy or deserving as others. For these reasons, and
because such discrimination is unlikely to be soon rectified by
legislative means, these laws are subjected to strict scrutiny, and
will be sustained only if they are suitably tailored to serve a
compelling state interest. McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 192 (1964); Graham v. Richardson, 403 U.
S. 365 (1971). Similar oversight by the courts is due
when state laws impinge on personal rights protected by the
Constitution. Kramer v. Union Free School District No. 15, 395 U. S. 621 (1969); Shapiro v. Thompson, 394 U.
S. 618 (1969); Skinner v. Oklahoma ex rel.
Williamson, 316 U. S. 535 (1942).

															Legislative classifications based on gender also call for a
heightened standard of review. That factor generally provides no
sensible ground for differential treatment.

															"[W]hat differentiates sex from such nonsuspect statuses as
intelligence or physical disability . . . is that the sex
characteristic Page 473 U. S. 441 frequently bears no relation to ability to perform or contribute
to society." Frontiero v. Richardson, 411 U.
S. 677 , 411 U. S. 686 (1973) (plurality opinion). Rather than resting on meaningful
considerations, statutes distributing benefits and burdens between
the sexes in different ways very likely reflect outmoded notions of
the relative capabilities of men and women. A gender classification
fails unless it is substantially related to a sufficiently
important governmental interest. Mississippi University for
Women v. Hogan, 458 U. S. 718 (1982); Craig v. Boren, 429 U. S. 190 (1976). Because illegitimacy is beyond the individual's control and
bears "no relation to the individual's ability to participate in
and contribute to society," Mathews v. Lucas, 427 U.
S. 495 , 427 U. S. 505 (1976), official discriminations resting on that characteristic are
also subject to somewhat heightened review. Those restrictions
"will survive equal protection scrutiny to the extent they are
substantially related to a legitimate state interest." Mills v.
Habluetzel, 456 U. S. 91 , 456 U. S. 99 (1982).

															We have declined, however, to extend heightened review to
differential treatment based on age:

															"While the treatment of the aged in this Nation has not been
wholly free of discrimination, such persons, unlike, say, those who
have been discriminated against on the basis of race or national
origin, have not experienced a 'history of purposeful unequal
treatment' or been subjected to unique disabilities on the basis of
stereotyped characteristics not truly indicative of their
abilities." Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 , 427 U. S. 313 (1976).

															The lesson of Murgia is that, where individuals in the
group affected by a law have distinguishing characteristics
relevant to interests the State has the authority to implement, the
courts have been very reluctant, as they should be in our federal
system and with our respect for the separation of powers, to
closely scrutinize legislative choices as to whether, how, and to
what extent those interests should be Page 473 U. S. 442 pursued. In such cases, the Equal Protection Clause requires
only a rational means to serve a legitimate end. III Against this background, we conclude for several reasons that
the Court of Appeals erred in holding mental retardation a
quasi-suspect classification calling for a more exacting standard
of judicial review than is normally accorded economic and social
legislation. First, it is undeniable, and it is not argued
otherwise here, that those who are mentally retarded have a reduced
ability to cope with and function in the everyday world. Nor are
they all cut from the same pattern: as the testimony in this record
indicates, they range from those whose disability is not
immediately evident to those who must be constantly cared for.
[ Footnote 9 ] They are thus
different, immutably so, in relevant respects, and the States'
interest in dealing with and providing for them is plainly a
legitimate one. [ Footnote
10 ] How this large and diversified group is to be treated Page 473 U. S. 443 under the law is a difficult and often a technical matter, very
much a task for legislators guided by qualified professionals, and
not by the perhaps ill-informed opinions of the judiciary.
Heightened scrutiny inevitably involves substantive judgments about
legislative decisions, and we doubt that the predicate for such
judicial oversight is present where the classification deals with
mental retardation.

															Second, the distinctive legislative response, both national and
state, to the plight of those who are mentally retarded
demonstrates not only that they have unique problems, but also that
the lawmakers have been addressing their difficulties in a manner
that belies a continuing antipathy or prejudice and a corresponding
need for more intrusive oversight by the judiciary. Thus, the
Federal Government has not only outlawed discrimination against the
mentally retarded in federally funded programs, see § 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794, but it has also
provided the retarded with the right to receive "appropriate
treatment, services, and habilitation" in a setting that is "least
restrictive of [their] personal liberty." Developmental
Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §§
6010(1), (2). In addition, the Government has conditioned federal
education funds on a State's assurance that retarded children will
enjoy an education that, "to the maximum extent appropriate," is
integrated with that of nonmentally retarded children. Education of
the Handicapped Act, 20 U.S.C. § 1412(5)(B). The Government has
also facilitated the hiring of the mentally retarded into the
federal civil service by exempting them from the requirement of
competitive examination. Page 473 U. S. 444 See 5 CFR § 213.3102(t) (1984). The State of Texas has
similarly enacted legislation that acknowledges the special status
of the mentally retarded by conferring certain rights upon them,
such as "the right to live in the least restrictive setting
appropriate to [their] individual needs and abilities," including
"the right to live . . . in a group home." Mentally Retarded
Persons Act of 1977, Tex.Rev.Civ.Stat.Ann., Art. 5547-300, § 7
(Vernon Supp.1985). [ Footnote
11 ]

															Such legislation thus singling out the retarded for special
treatment reflects the real and undeniable differences between the
retarded and others. That a civilized and decent society expects
and approves such legislation indicates that governmental
consideration of those differences in the vast majority of
situations is not only legitimate but also desirable. It may be, as
CLC contends, that legislation designed to benefit, rather than
disadvantage, the retarded would generally withstand examination
under a test of heightened scrutiny. See Brief for
Respondents 38-41. The relevant inquiry, however, is whether
heightened scrutiny is constitutionally mandated in the first
instance. Even assuming that many of these laws could be shown to
be substantially related to an important governmental purpose,
merely requiring the legislature to justify its efforts in these
terms may lead it to refrain from acting at all. Much recent
legislation intended to benefit the retarded also assumes the need
for measures that might be perceived to disadvantage them. The
Education of the Handicapped Act, for example, requires an
"appropriate" education, not one that is equal in all respects Page 473 U. S. 445 to the education of nonretarded children; clearly, admission to
a class that exceeded the abilities of a retarded child would not
be appropriate. [ Footnote
12 ] Similarly, the Developmental Disabilities Assistance Act
and the Texas Act give the retarded the right to live only in the
"least restrictive setting" appropriate to their abilities,
implicitly assuming the need for at least some restrictions that
would not be imposed on others. [ Footnote 13 ] Especially given the wide variation in the
abilities and needs of the retarded themselves, governmental bodies
must have a certain amount of flexibility and freedom from judicial
oversight in shaping and limiting their remedial efforts.

															Third, the legislative response, which could hardly have
occurred and survived without public support, negates any claim
that the mentally retarded are politically powerless in the sense
that they have no ability to attract the attention of the
lawmakers. Any minority can be said to be powerless to assert
direct control over the legislature, but if that were a criterion
for higher level scrutiny by the courts, much economic and social
legislation would now be suspect.

															Fourth, if the large and amorphous class of the mentally
retarded were deemed quasi-suspect for the reasons given by the
Court of Appeals, it would be difficult to find a principled way to
distinguish a variety of other groups who have perhaps immutable
disabilities setting them off from others, who cannot themselves
mandate the desired legislative responses, and who can claim some
degree of prejudice from at least part of the public at large. One
need mention in this respect only Page 473 U. S. 446 the aging, the disabled, the mentally ill, and the infirm. We
are reluctant to set out on that course, and we decline to do
so.

															Doubtless, there have been and there will continue to be
instances of discrimination against the retarded that are, in fact,
invidious, and that are properly subject to judicial correction
under constitutional norms. But the appropriate method of reaching
such instances is not to create a new quasi-suspect classification
and subject all governmental action based on that classification to
more searching evaluation. Rather, we should look to the likelihood
that governmental action premised on a particular classification is
valid as a general matter, not merely to the specifics of the case
before us. Because mental retardation is a characteristic that the
government may legitimately take into account in a wide range of
decisions, and because both State and Federal Governments have
recently committed themselves to assisting the retarded, we will
not presume that any given legislative action, even one that
disadvantages retarded individuals, is rooted in considerations
that the Constitution will not tolerate.

															Our refusal to recognize the retarded as a quasi-suspect class
does not leave them entirely unprotected from invidious
discrimination. To withstand equal protection review, legislation
that distinguishes between the mentally retarded and others must be
rationally related to a legitimate governmental purpose. This
standard, we believe, affords government the latitude necessary
both to pursue policies designed to assist the retarded in
realizing their full potential, and to freely and efficiently
engage in activities that burden the retarded in what is
essentially an incidental manner. The State may not rely on a
classification whose relationship to an asserted goal is so
attenuated as to render the distinction arbitrary or irrational. See Zobel v. Williams, 457 U. S. 55 , 457 U. S. 61 -63
(1982); United States Dept. of Agriculture v. Moreno, 413 U. S. 528 , 413 U. S. 535 (1973). Furthermore, some objectives -- Page 473 U. S. 447 such as "a bare . . . desire to harm a politically unpopular
group," id. at 413 U. S. 534 -- are not legitimate state interests. See also Zobel,
supra, at 457 U. S. 63 .
Beyond that, the mentally retarded, like others, have and retain
their substantive constitutional rights in addition to the right to
be treated equally by the law. IV We turn to the issue of the validity of the zoning ordinance
insofar as it requires a special use permit for homes for the
mentally retarded. [ Footnote
14 ] We inquire first whether requiring a special use permit for
the Featherston home in the circumstances here deprives respondents
of the equal protection of the laws. If it does, there will be no
occasion to decide whether the special use permit provision is
facially invalid where the mentally retarded are involved, or to
put it another way, whether the city may never insist on a special
use permit for a home for the mentally retarded in an R-3 zone.
This is the preferred course of adjudication, since it enables
courts to avoid making unnecessarily broad constitutional
judgments. Brockett v. Spokane Arcades, Inc., 472 U.
S. 491 , 472 U. S.
501 -502 (1985); United States v. Grace, 461 U. S. 171 (1983); NAACP v. Button, 371 U. S. 415 (1963).

															The constitutional issue is clearly posed. The city does not
require a special use permit in an R-3 zone for apartment houses,
multiple dwellings, boarding and lodging houses, fraternity or
sorority houses, dormitories, apartment hotels, hospitals,
sanitariums, nursing homes for convalescents or the aged (other
than for the insane or feeble-minded or alcoholics or drug
addicts), private clubs or fraternal orders, and other specified
uses. It does, however, insist on a special permit for the
Featherston home, and it does so, as the District Court found,
because it would be a facility for the mentally Page 473 U. S. 448 retarded. May the city require the permit for this facility when
other care and multiple-dwelling facilities are freely
permitted?

															It is true, as already pointed out, that the mentally retarded,
as a group, are indeed different from others not sharing their
misfortune, and in this respect they may be different from those
who would occupy other facilities that would be permitted in an R-3
zone without a special permit. But this difference is largely
irrelevant unless the Featherston home and those who would occupy
it would threaten legitimate interests of the city in a way that
other permitted uses such as boarding houses and hospitals would
not. Because, in our view, the record does not reveal any rational
basis for believing that the Featherston home would pose any
special threat to the city's legitimate interests, we affirm the
judgment below insofar as it holds the ordinance invalid as applied
in this case.

															The District Court found that the City Council's insistence on
the permit rested on several factors. First, the Council was
concerned with the negative attitude of the majority of property
owners located within 200 feet of the Featherston facility, as well
as with the fears of elderly residents of the neighborhood. But
mere negative attitudes, or fear, unsubstantiated by factors which
are properly cognizable in a zoning proceeding, are not permissible
bases for treating a home for the mentally retarded differently
from apartment houses, multiple dwellings, and the like. It is
plain that the electorate as a whole, whether by referendum or
otherwise, could not order city action violative of the Equal
Protection Clause, Lucas v. Forty-Fourth General Assembly of
Colorado, 377 U. S. 713 , 377 U. S.
736 -737 (1964), and the city may not avoid the
strictures of that Clause by deferring to the wishes or objections
of some fraction of the body politic. "Private biases may be
outside the reach of the law, but the law cannot, directly or
indirectly, give them effect." Palmore v. Sidoti, 466 U. S. 429 , 466 U. S. 433 (1984). Page 473 U. S. 449 Second, the Council had two objections to the location of the
facility. It was concerned that the facility was across the street
from a junior high school, and it feared that the students might
harass the occupants of the Featherston home. But the school itself
is attended by about 30 mentally retarded students, and denying a
permit based on such vague, undifferentiated fears is again
permitting some portion of the community to validate what would
otherwise be an equal protection violation. The other objection to
the home's location was that it was located on "a five-hundred-year
flood plain." This concern with the possibility of a flood,
however, can hardly be based on a distinction between the
Featherston home and, for example, nursing homes, homes for
convalescents or the aged, or sanitariums or hospitals, any of
which could be located on the Featherston site without obtaining a
special use permit. The same may be said of another concern of the
Council -- doubts about the legal responsibility for actions which
the mentally retarded might take. If there is no concern about
legal responsibility with respect to other uses that would be
permitted in the area, such as boarding and fraternity houses, it
is difficult to believe that the groups of mildly or moderately
mentally retarded individuals who would live at 201 Featherston
would present any different or special hazard.

															Fourth, the Council was concerned with the size of the home and
the number of people that would occupy it. The District Court
found, and the Court of Appeals repeated, that,

															"[i]f the potential residents of the Featherston Street home
were not mentally retarded, but the home was the same in all other
respects, its use would be permitted under the city's zoning
ordinance."

															App. 93; 726 F.2d at 200. Given this finding, there would be no
restrictions on the number of people who could occupy this home as
a boarding house, nursing home, family dwelling, fraternity house,
or dormitory. The question is whether it is rational to treat the
mentally retarded differently. It is true that they suffer
disability Page 473 U. S. 450 not shared by others, but why this difference warrants a density
regulation that others need not observe is not at all apparent. At
least this record does not clarify how, in this connection, the
characteristics of the intended occupants of the Featherston home
rationally justify denying to those occupants what would be
permitted to groups occupying the same site for different purposes.
Those who would live in the Featherston home are the type of
individuals who, with supporting staff, satisfy federal and state
standards for group housing in the community; and there is no
dispute that the home would meet the federal
square-footage-per-resident requirement for facilities of this
type. See 42 CFR § 442.447 (1984). In the words of the
Court of Appeals,

															"[t]he City never justifies its apparent view that other people
can live under such 'crowded' conditions when mentally retarded
persons cannot."

															726 F.2d at 202.

															In the courts below, the city also urged that the ordinance is
aimed at avoiding concentration of population and at lessening
congestion of the streets. These concerns obviously fail to explain
why apartment houses, fraternity and sorority houses, hospitals and
the like, may freely locate in the area without a permit. So, too,
the expressed worry about fire hazards, the serenity of the
neighborhood, and the avoidance of danger to other residents fail
rationally to justify singling out a home such as 201 Featherston
for the special use permit, yet imposing no such restrictions on
the many other uses freely permitted in the neighborhood.

															The short of it is that requiring the permit in this case
appears to us to rest on an irrational prejudice against the
mentally retarded, including those who would occupy the Featherston
facility and who would live under the closely supervised and highly
regulated conditions expressly provided for by state and federal
law.

															The judgment of the Court of Appeals is affirmed insofar as it
invalidates the zoning ordinance as applied to the Featherston
home. The judgment is otherwise vacated, and the case is
remanded. It is so ordered. Page 473 U. S. 451 [ Footnote 1 ]

															Cleburne Living Center, Inc., is now known as Community Living
Concepts, Inc. Hannah is the vice-president and part owner of CLC.
For convenience, both Hannah and CLC will be referred to as "CLC."
A third respondent is Advocacy, Inc., a nonprofit corporation that
provides legal services to developmentally disabled persons.

															[ Footnote 2 ]

															It was anticipated that the home would be operated as a private
Level I Intermediate Care Facility for the Mentally Retarded, or
ICF-MR, under a program providing for joint federal-state
reimbursement for residential services for mentally retarded
clients. See 42 U.S.C. § 1396d(a)(15); Tex. Human
Resources Code Ann. § 32.001 et seq. (1980 and Supp.1985).
ICF-MR's are covered by extensive regulations and guidelines
established by the United States Department of Health and Human
Services and the Texas Departments of Human Resources, Mental
Health and Mental Retardation, and Health. See App. 92. See also 42 CFR § 442.1 et seq. (1984); 40
Tex.Adm.Code § 27.101 et seq. (1981).

															[ Footnote 3 ]

															The site of the home is in an area zoned "R-3," an "Apartment
House District." App. 51. Section 8 of the Cleburne zoning
ordinance, in pertinent part, allows the following uses in an R-3
district:

															"1. Any use permitted in District R-2."

															"2. Apartment houses, or multiple dwellings."

															"3. Boarding and lodging houses."

															"4. Fraternity or sorority houses and dormitories."

															"5. Apartment hotels."

															"6. Hospitals, sanitariums, nursing homes or homes for
convalescents or aged, other than for the insane or feeble-minded or alcoholics or drug addicts."

															"7. Private clubs or fraternal orders, except those whose chief
activity is carried on as a business."

															"8. Philanthropic or eleemosynary institutions, other than penal
institutions."

															"9. Accessory uses customarily incident to any of the above
uses. . . ." Id. at 60-61 (emphasis added).

															Section 16 of the ordinance specifies the uses for which a
special use permit is required. These include "[h]ospitals for the
insane or feeble-minded, or alcoholic [ sic ] or drug
addicts, or penal or correctional institutions." Id. at
63. Section 16 provides that a permit for such a use may be issued
by "the Governing Body, after public hearing, and after
recommendation of the Planning Commission." All special use permits
are limited to one year, and each applicant is required "to obtain
the signatures of the property owners within two hundred (200) feet
of the property to be used." Ibid. [ Footnote 4 ]

															The city's Planning and Zoning Commission had earlier held a
hearing and voted to deny the permit. Id. at 91.

															[ Footnote 5 ]

															The District Court also rejected CLC's other claims, including
the argument that the city had violated due process by improperly
delegating its zoning powers to the owners of adjoining property.
App. 105. Cf. Washington ex rel. Seattle Title Trust Co. v.
Roberge, 278 U. S. 116 (1928). The Court of Appeals did not address this argument, and it
has not been raised by the parties in this Court.

															[ Footnote 6 ]

															The District Court had found:

															"Group homes currently are the principal community living
alternatives for persons who are mentally retarded. The
availability of such a home in communities is an essential
ingredient of normal living patterns for persons who are mentally
retarded, and each factor that makes such group homes harder to
establish operates to exclude persons who are mentally retarded
from the community."

															App. 94.

															[ Footnote 7 ]

															The city relied on a recently passed state regulation limiting
group homes to 6 residents in support of its argument that the CLC
home would be overcrowded with 13. But, the Court of Appeals
observed, the city had failed to justify its apparent view that any
other group of 13 people could live under these allegedly "crowded"
conditions, nor had it explained why 6 would be acceptable, but 13
not.

															CLC concedes that it could not qualify for certification under
the new Texas regulation. Tr. of Oral Rearg. 31. The Court of
Appeals stated that the new regulation applied only to applications
made after May 1, 1982, and therefore did not apply to the CLC
home. 726 F.2d at 202. The regulation itself contains no
grandfather clause, see App. 78-81, and the District Court
made no specific finding on this point. See id. at 96.
However, the State has asserted in an amici brief filed in
this Court that " the six-bed rule' would not pose an obstacle
to the proposed Featherston Street group home at issue in this
case." Brief for State of Texas et al. as Amici
Curiae 15, n. 7. If the six-bed requirement were to apply to
the home, there is a serious possibility that CLC would no longer
be interested in injunctive relief. David Southern, an officer of
CLC, testified that "to break even on a facility of this type, you
have to have at least ten or eleven residents." App. 32. However,
because CLC requested damages as well as an injunction, see
id. at 15, the case would not be moot. After oral argument, the city brought to our attention the
recent enactment of a Texas statute, effective September 1, 1985,
providing that "family homes" are permitted uses in "all
residential zones or districts in this state." The statute defines
a "family home" as a community-based residence housing no more than
six disabled persons, including the mentally retarded, along with
two supervisory personnel. The statute does not appear to affect
the city's actions with regard to group homes that plan to house
more than six residents. The enactment of this legislation
therefore does not affect our disposition of this case.

															[ Footnote 8 ] Macon Assn. for Retarded Citizens v. Macon-Bibb County
Planning and Zoning Comm'n, 252 Ga. 484, 314 S.E.2d 218 (1984), dism'd for want of a substantial federal question, 469 U.S. 802 (1984), has no controlling effect on this case. Macon Assn. for Retarded Citizens involved an ordinance
that had the effect of excluding a group home for the retarded only
because it restricted dwelling units to those occupied by a single
family, defined as no more than four unrelated persons. In Village of Belle Terre v. Boraas, 416 U. S.
1 (1974), we upheld the constitutionality of a similar
ordinance, and the Georgia Supreme Court, in Macon Assn., specifically held that the ordinance did not discriminate against
the retarded. 252 Ga., at 487, 314 S.E.2d at 221.

															[ Footnote 9 ]

															Mentally retarded individuals fall into four distinct
categories. The vast majority -- approximately 89% -- are
classified as "mildly" retarded, meaning that their IQ is between
50 and 70. Approximately 6% are "moderately" retarded, with IQs
between 35 and 50. The remaining two categories are "severe" (IQs
of 20 to 35) and "profound" (IQs below 20). These last two
categories together account for about 5% of the mentally retarded
population. App. 39 (testimony of Dr. Philip Roos).

															Mental retardation is not defined by reference to intelligence
or IQ alone, however. The American Association on Mental Deficiency
(AAMD) has defined mental retardation as

															"'significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and
manifested during the developmental period.'"

															Brief for AAMD et al. as Amici Curiae 3
(quoting AAMD, Classification in Mental Retardation 1 (H. Grossman
ed.1983)). "Deficits in adaptive behavior" are limitations on
general ability to meet the standards of maturation, learning,
personal independence, and social responsibility expected for an
individual's age level and cultural group. Brief for AAMD et
al. as Amici Curiae 4, n. 1. Mental retardation is
caused by a variety of factors, some genetic, some environmental,
and some unknown. Id. at 4.

															[ Footnote 10 ]

															As Dean Ely has observed:

															"Surely one has to feel sorry for a person disabled by something
he or she can't do anything about, but I'm not aware of any reason
to suppose that elected officials are unusually unlikely to share
that feeling. Moreover, classifications based on physical
disability and intelligence are typically accepted as legitimate,
even by judges and commentators who assert that immutability is
relevant. The explanation, when one is given, is that those
characteristics (unlike the one the commentator is trying to render
suspect) are often relevant to legitimate purposes. At that point,
there's not much left of the immutability theory, is there?"

															J. Ely, Democracy and Distrust 150 (1980) (footnote omitted). See also id. at 154-155.

															[ Footnote 11 ]

															CLC originally sought relief under the Act, but voluntarily
dismissed this pendent state claim when the District Court
indicated that its presence might make abstention appropriate. The
Act had never been construed by the Texas courts. App. 12, 14,
84-87.

															A number of States have passed legislation prohibiting zoning
that excludes the retarded. See, e.g., Cal.Health &
Safety Code Ann. § 1566 et seq. (West 1979 and Supp.1985);
Conn.Gen.Stat. § 8-3e (Supp.1985); N.D.Cent.Code § 25-16-14(2)
(Supp.1983); R.I.Gen.Laws. § 45-24-22 (1980). See also Md.
Health Code Ann. § 7-102 (Supp.1984).

															[ Footnote 12 ]

															The Act, which specifically included the mentally retarded in
its definition of handicapped, see 20 U.S.C. § 1401(1),
also recognizes the great variations within the classification of
retarded children. The Act requires that school authorities devise
an "individualized educational program," § 1401 (19), that is
"tailored to the unique needs of the handicapped child." Hendrick Hudson District Board of Education v. Rowley, 458 U. S. 176 , 458 U. S. 181 (1982).

															[ Footnote 13 ]

															The Developmental Disabilities Assistance Act also withholds
public funds from any program that does not prohibit the use of
physical restraint "unless absolutely necessary." 42 U.S.C. §
6010(3).

															[ Footnote 14 ]

															It goes without saying that there is nothing before us with
respect to the validity of requiring a special use permit for the
other uses listed in the ordinance. See n 3, supra. JUSTICE STEVENS, with whom THE CHIEF JUSTICE joins,
concurring.

															The Court of Appeals disposed of this case as if a critical
question to be decided were which of three clearly defined
standards of equal protection review should be applied to a
legislative classification discriminating against.the mentally
retarded. [ Footnote 2/1 ] In fact,
our cases have not delineated three -- or even one or two -- such
well-defined standards. [ Footnote
2/2 ] Rather, our cases reflect a continuum of judgmental
responses to differing classifications which have been explained in
opinions by terms ranging from "strict scrutiny" at one extreme to
"rational basis" at the other. I have never been persuaded that
these so-called "standards" adequately explain the decisional
process. [ Footnote 2/3 ] Cases
involving classifications based on alienage, Page 473 U. S. 452 illegal residency, illegitimacy, gender, age, or -- as in this
case -- mental retardation, do not fit well into sharply defined
classifications.

															"I am inclined to believe that what has become known as the
[tiered] analysis of equal protection claims does not describe a
completely logical method of deciding cases, but rather is a method
the Court has employed to explain decisions that actually apply a
single standard in a reasonably consistent fashion." Craig v. Boren, 429 U. S. 190 , 429 U. S. 212 (1976) (STEVENS, J., concurring). In my own approach to these
cases, I have always asked myself whether I could find a "rational
basis" for the classification at issue. The term "rational," of
course, includes a requirement that an impartial lawmaker could
logically believe that the classification would serve a legitimate
public purpose that transcends the harm to the members of the
disadvantaged class. [ Footnote 2/4 ]
Thus, the word "rational" -- for me at least -- includes elements
of legitimacy and neutrality that must always characterize the
performance of the sovereign's duty to govern impartially.
[ Footnote 2/5 ]

															The rational basis test, properly understood, adequately
explains why a law that deprives a person of the right to vote
because his skin has a different pigmentation than that of other
voters violates the Equal Protection Clause. It would be utterly
irrational to limit the franchise on the basis of height or weight;
it is equally invalid to limit it on the basis of skin color. None
of these attributes has any bearing at all Page 473 U. S. 453 on the citizen's willingness or ability to exercise that civil
right. We do not need to apply a special standard, or to apply
"strict scrutiny," or even "heightened scrutiny," to decide such
cases.

															In every equal protection case, we have to ask certain basic
questions. What class is harmed by the legislation, and has it been
subjected to a "tradition of disfavor" by our laws? [ Footnote 2/6 ] What is the public purpose
that is being served by the law? What is the characteristic of the
disadvantaged class that justifies the disparate treatment?
[ Footnote 2/7 ] In most cases, the
answer to these questions will tell us whether the statute has a
"rational basis." The answers will result in the virtually
automatic invalidation of racial classifications and in the
validation of most economic classifications, but they will provide
differing results in cases involving classifications based on
alienage, [ Footnote 2/8 ] gender,
[ Footnote 2/9 ] or illegitimacy.
[ Footnote 2/10 ] But that is not
because we Page 473 U. S. 454 apply an "intermediate standard of review" in these cases;
rather, it is because the characteristics of these groups are
sometimes relevant and sometimes irrelevant to a valid public
purpose, or, more specifically, to the purpose that the challenged
laws purportedly intended to serve. [ Footnote 2/11 ]

															Every law that places the mentally retarded in a special class
is not presumptively irrational. The differences between mentally
retarded persons and those with greater mental capacity are
obviously relevant to certain legislative decisions. An impartial
lawmaker -- indeed, even a member of a class of persons defined as
mentally retarded -- could rationally vote in favor of a law
providing funds for special education and special treatment for the
mentally retarded. A mentally retarded person could also recognize
that he is a member of a class that might need special supervision
in some situations, both to protect himself and to protect others.
Restrictions on his right to drive cars or to operate hazardous
equipment might well seem rational even though they deprived him of
employment opportunities and the kind of freedom of travel enjoyed
by other citizens.

															"That a civilized and decent society expects and approves such
legislation indicates that governmental consideration of those
differences in the vast majority of situations is not only
legitimate, but also desirable." Ante at 473 U. S.
444 .

															Even so, the Court of Appeals correctly observed that, through
ignorance and prejudice, the mentally retarded "have been subjected
to a history of unfai and often grotesque mistreatment." 726 F.2d
191, 197 (CA5 1984). The dis-

															crimination against the mentally retarded that is at issue in
this case is the city's decision to require an annual special use
permit before property in an apartment house district may be used
as a group home for persons who are mildly retarded. The record
convinces me that this permit was required because of the
irrational fears of neighboring property owners, rather than for
the protection of the mentally retarded persons who would reside in
respondent's home. [ Footnote
2/12 ]

															Although the city argued in the Court of Appeals that legitimate
interests of the neighbors justified the restriction, the court
unambiguously rejected that argument. Id. at 201. In this
Court, the city has argued that the discrimination was really
motivated by a desire to protect the mentally retarded from the
hazards presented by the neighborhood. Zoning ordinances are not
usually justified on any such basis, and in this case, for the
reasons explained by the Court, ante at 473 U. S.
447 -450, I find that justification wholly unconvincing.
I cannot believe that a rational member of this disadvantaged class
could ever approve of the discriminatory application of the city's
ordinance in this case.

															Accordingly, I join the opinion of the Court. Page 473 U. S. 455 [ Footnote 2/1 ]

															The three standards -- "rationally related to a legitimate state
interest," "somewhat heightened review," and "strict scrutiny" are
briefly described ante at 473 U. S. 440 ,
441.

															[ Footnote 2/2 ]

															In United States Railroad Retirement Board v. Fritz, 449 U. S. 166 , 449 U. S.
176 -177, n. 10 (1980), after citing 11 cases applying
the rational basis standard, the Court stated:

															"The most arrogant legal scholar would not claim that all of
these cases applied a uniform or consistent test under equal
protection principles."

															Commenting on the intermediate standard of review in his dissent
in Craig v. Boren, 429 U. S. 190 , 429 U. S.
220 -221 (1976), JUSTICE REHNQUIST wrote:

															"I would think we have had enough difficulty with the two
standards of review which our cases have recognized -- the norm of
'rational basis,' and the 'compelling state interest' required
where a 'suspect classification' is involved -- so as to counsel
weightily against the insertion of still another 'standard' between
those two. How is this Court to divine what objectives are
important? How is it to determine whether a particular law is
'substantially' related to the achievement of such objective,
rather than related in some other way to its achievement? Both of
the phrases used are so diaphanous and elastic as to invite
subjective judicial preferences or prejudices relating to
particular types of legislation, masquerading as judgments whether
such legislation is directed at 'important' objectives or, whether
the relationship to those objectives is 'substantial' enough."

															[ Footnote 2/3 ] Cf. San Antonio Independent School District v.
Rodriguez, 411 U. S. 1 , 411 U. S. 98 (1973) (MARSHALL, J., dissenting, joined by Douglas, J.)
(criticizing "the Court's rigidified approach to equal protection
analysis").

															[ Footnote 2/4 ]

															"I therefore believe that we must discover a correlation between
the classification and either the actual purpose of the statute or
a legitimate purpose that we may reasonably presume to have
motivated an impartial legislature. If the adverse impact on the
disfavored class is an apparent aim of the legislature, its
impartiality would be suspect. If, however, the adverse impact may
reasonably be viewed as an acceptable cost of achieving a larger
goal, an impartial lawmaker could rationally decide that that cost
should be incurred." United States Railroad Retirement Board v. Fritz, 449
U.S. at 449 U. S.
180 -181 (STEVENS, J., concurring in judgment).

															[ Footnote 2/5 ] See Lehr v. Robertson, 463 U.
S. 248 , 463 U. S. 265 (1983); Hampton v. Mow Sun Wong, 426 U. S.
88 , 426 U. S. 100 (1976).

															[ Footnote 2/6 ]

															The Court must be especially vigilant in evaluating the
rationality of any classification involving a group that has been
subjected to a

															"tradition of disfavor, [for] a traditional classification is
more likely to be used without pausing to consider its
justification than is a newly created classification. Habit, rather
than analysis, makes it seem acceptable and natural to distinguish
between male and female, alien and citizen, legitimate and
illegitimate; for too much of our history, there was the same
inertia in distinguishing between black and white. But that sort of
stereotyped reaction may have no rational relationship -- other
than pure prejudicial discrimination -- to the stated purpose for
which the classification is being made." Mathews v. Lucas, 427 U. S. 495 , 427 U. S.
520 -521 (1976) (STEVENS, J., dissenting). See also
New York Transit Authority v. Beazer, 440 U.
S. 568 , 440 U. S. 593 (1979).

															[ Footnote 2/7 ] See Foley v. Connelie, 435 U.
S. 291 , 435 U. S. 308 (1978) (STEVENS, J., dissenting).

															[ Footnote 2/8 ] See Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 78 -80
(1976); compare Sugarman v. Dougall, 413 U.
S. 634 (1973), and In re Griffiths, 413 U. S. 717 (1973), with Ambach v. Norwick, 441 U. S.
68 (1979), and Foley v. Connelie, 435 U.
S. 291 (1978).

															[ Footnote 2/9 ] Compare Reed v. Reed, 404 U. S. 71 (1971), and Califano v. Goldfarb, 430 U.
S. 199 (1977), with Personnel Administrator of Mass.
v. Feeney, 442 U. S. 256 (1979), and Heckler v. Mathews, 465 U.
S. 728 (1984).

															[ Footnote 2/10 ] Compare Lalli v. Lalli, 439 U.
S. 259 (1978), with Trimble v. Gordon, 430 U. S. 762 (1977).

															[ Footnote 2/11 ] See Michael M. v. Superior Court of Sonoma County, 450 U. S. 464 , 450 U. S.
497 -498, and n. 4 (1981) (STEVENS, J., dissenting). See also Caban v. Mohammed, 441 U.
S. 380 , 441 U. S.
406 -407 (1979) (STEVENS, J., dissenting) ("But as a
matter of equal protection analysis, it is perfectly obvious that
at the time and immediately after a child is born our of wedlock,
differences between men and women justify some differential
treatment of the mother and father in the adoption process.").

															[ Footnote 2/12 ]

															In fact, the ordinance provides that each applicant for a
special use permit "shall be required to obtain the signatures of
the property owners within two hundred (200) feet of the property
to be used." App. 63.

															JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN
join, concurring in the judgment in part and dissenting in
part.

															The Court holds that all retarded individuals cannot be grouped
together as the "feeble-minded" and deemed presumptively unfit to
live in a community. Underlying this holding is the principle that
mental retardation, per se, cannot be a proxy for
depriving retarded people of their rights and interests without
regard to variations in individual ability. Page 473 U. S. 456 With this holding and principle I agree. The Equal Protection
Clause requires attention to the capacities and needs of retarded
people as individuals.

															I cannot agree, however, with the way in which the Court reaches
its result or with the narrow, as-applied remedy it provides for
the city of Cleburne's equal protection violation. The Court holds
the ordinance invalid on rational basis grounds, and disclaims that
anything special, in the form of heightened scrutiny, is taking
place. Yet Cleburne's ordinance surely would be valid under the
traditional rational basis test applicable to economic and
commercial regulation. In my view, it is important to articulate,
as the Court does not, the facts and principles that justify
subjecting this zoning ordinance to the searching review -- the
heightened scrutiny -- that actually leads to its invalidation.
Moreover, in invalidating Cleburne's exclusion of the
"feeble-minded" only as applied to respondents, rather than on its
face, the Court radically departs from our equal protection
precedents. Because I dissent from this novel and truncated remedy,
and because I cannot accept the Court's disclaimer that no "more
exacting standard" than ordinary rational basis review is being
applied, ante at 473 U. S. 442 ,
I write separately. I At the outset, two curious and paradoxical aspects of the
Court's opinion must be noted. First, because the Court invalidates
Cleburne's zoning ordinance on rational basis grounds, the Court's
wide-ranging discussion of heightened scrutiny is wholly
superfluous to the decision of this case. This "two for the price
of one" approach to constitutional decisionmaking -- rendering two
constitutional rulings where one is enough to decide the case --
stands on their head traditional and deeply embedded principles
governing exercise of the Court's Article III power. Just a few
weeks ago, the Court

															"call[ed] to mind two of the cardinal rules governing Page 473 U. S. 457 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 , 472 U. S. 501 (1985) (WHITE, J.) (quoting Liverpool, New York &
Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 113 U. S. 39 (1885)). [ Footnote 3/1 ] When a
lower court correctly decides a case, albeit on what this Court
concludes are unnecessary constitutional grounds, [ Footnote 3/2 ] "our usual custom" is not to compound
the problem by following suit, but rather to affirm on the
narrower, dispositive ground available. Alexander v.
Louisiana, 405 U. S. 625 , 405 U. S. 633 (1972). [ Footnote 3/3 ] The Court
offers no principled justification for departing from these
principles, nor, given our equal protection precedents, could it. See Mississippi University for Women v. Hogan, 458 U. S. 718 , 458 U. S. 724 ,
n. 9 (1982) (declining to address strict scrutiny when heightened
scrutiny sufficient to invalidate action challenged); Stanton
v. Stanton, 421 U. S. 7 , 421 U. S. 13 (1975) Page 473 U. S. 458 (same); Hooper v. Bernalillo County Assessor, 472 U. S. 612 , 472 U. S. 618 (1985) (declining to reach heightened scrutiny in review of
residency-based classifications that fail rational basis test); Zobel v. Williams, 457 U. S. 55 , 457 U. S. 60 -61
(1982) (same); cf. Mitchell v. Forsyth, 472 U.
S. 511 , 472 U. S.
537 -538 (1985) (O'CONNOR, J., concurring in part).

															Second, the Court's heightened scrutiny discussion is even more
puzzling given that Cleburne's ordinance is invalidated only after
being subjected to precisely the sort of probing inquiry associated
with heightened scrutiny. To be sure, the Court does not label its
handiwork heightened scrutiny, and perhaps the method employed must
hereafter be called "second order" rational basis review, rather
than "heightened scrutiny." But however labeled, the rational basis
test invoked today is most assuredly not the rational basis test of Williamson v. Lee Optical of Oklahoma, Inc., 348 U.
S. 483 (1955); Allied Stores of Ohio, Inc. v.
Bowers, 358 U. S. 522 (1959), and their progeny.

															The Court, for example, concludes that legitimate concerns for
fire hazards or the serenity of the neighborhood do not justify
singling out respondents to bear the burdens of these concerns, for
analogous permitted uses appear to pose similar threats. Yet under
the traditional and most minimal version of the rational basis
test, "reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative
mind." Williamson v. Lee Optical of Oklahoma, Inc., supra, at 348 U. S. 489 ; see American Federation of Labor v. American Sash Co., 335 U. S. 538 (1949); Semler v. Dental Examiners, 294 U.
S. 608 (1935). The "record" is said not to support the
ordinance's classifications, ante at 473 U. S. 448 , 473 U. S. 450 ,
but under the traditional standard, we do not sift through the
record to determine whether policy decisions are squarely supported
by a firm factual foundation. Exxon Corp. v. Eagerton, 462 U. S. 176 , 462 U. S. 196 (1983); Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 , 449 U. S.
461 -462, Page 473 U. S. 459 449 U. S. 464 (1981); Firemen v. Chicago, R. I. & P. R. Co., 393 U. S. 129 , 393 U. S.
138 -139 (1968). Finally, the Court further finds it
"difficult to believe" that the retarded present different or
special hazards inapplicable to other groups. In normal
circumstances, the burden is not on the legislature to convince the
Court that the lines it has drawn are sensible; legislation is
presumptively constitutional, and a State "is not required to
resort to close distinctions or to maintain a precise, scientific
uniformity with reference" to its goals. Allied Stores of Ohio,
Inc. v. Bowers, supra, at 358 U. S. 527 ; Metropolis Theatre Co. v. City of Chicago, 228 U. S.
61 , 228 U. S. 68 -70
(1913).

															I share the Court's criticisms of the overly broad lines that
Cleburne's zoning ordinance has drawn. But if the ordinance is to
be invalidated for its imprecise classifications, it must be
pursuant to more powerful scrutiny than the minimal rational basis
test used to review classifications affecting only economic and
commercial matters. The same imprecision in a similar ordinance
that required opticians but not optometrists to be licensed to
practice, see Williamson v. Lee Optical of Oklahoma, Inc.,
supra, or that excluded new but not old businesses from parts
of a community, see New Orleans v. Dukes, supra, would
hardly be fatal to the statutory scheme.

															The refusal to acknowledge that something more than minimum
rationality review is at work here is, in my view, unfortunate in
at least two respects. [ Footnote
3/4 ] The suggestion that Page 473 U. S. 460 the traditional rational basis test allows this sort of
searching inquiry creates precedent for this Court and lower courts
to subject economic and commercial classifications to similar and
searching "ordinary" rational basis review -- a small and
regrettable step back toward the days of Lochner v. New
York, 198 U. S. 45 (1905). Moreover, by failing to articulate the factors that justify
today's "second order" rational basis review, the Court provides no
principled foundation for determining when more searching inquiry
is to be invoked. Lower courts are thus left in the dark on this
important question, and this Court remains unaccountable for its
decisions employing, or refusing to employ, particularly searching
scrutiny. Candor requires me to acknowledge the particular factors
that justify invalidating Cleburne's zoning ordinance under the
careful scrutiny it today receives. II I have long believed the level of scrutiny employed in an equal
protection case should vary with

															"the constitutional and societal importance of the interest
adversely affected and the recognized invidiousness of the basis
upon which the particular classification is drawn." San Antonio Independent School District v. Rodriguez, 411 U. S. 1 , 411 U. S. 99 (1973) (MARSHALL, J., dissenting). See also Plyler v. Doe, 457 U. S. 202 , 457 U. S.
230 -231 (1982) (MARSHALL, J., concurring); Dandridge
v. Williams, 397 U. S. 471 , 397 U. S. 508 (1970) (MARSHALL, J., dissenting). When a zoning ordinance works to
exclude the retarded from all residential districts in a community,
these two considerations require that the ordinance be convincingly
justified as substantially furthering legitimate and important
purposes. Plyler, supra; Mississippi University for Women v.
Hogan, 458 U. S. 718 (1982); Frontiero v. Richardson, 411 U.
S. 677 (1973); Mills v. Habluetzel, 456 U. S. 91 (1982); see also Buchanan v. Warley, 245 U. S.
60 (1917). Page 473 U. S. 461 First, the interest of the retarded in establishing group homes
is substantial. The right to "establish a home" has long been
cherished as one of the fundamental liberties embraced by the Due
Process Clause. See Meyer v. Nebraska, 262 U.
S. 390 , 262 U. S. 399 (1923). For retarded adults, this right means living together in
group homes, for as deinstitutionalization has progressed, group
homes have become the primary means by which retarded adults can
enter life in the community. The District Court found as a matter
of fact that

															"[t]he availability of such a home in communities is an
essential ingredient of normal living patterns for persons who are
mentally retarded, and each factor that makes such group homes
harder to establish operates to exclude persons who are mentally
retarded from the community."

															App. to Pet. for Cert. A-8. Excluding group homes deprives the
retarded of much of what makes for human freedom and fulfillment --
the ability to form bonds and take part in the life of a community.
[ Footnote 3/5 ]

															Second, the mentally retarded have been subject to a "lengthy
and tragic history," University of California Regents v.
Bakke, 438 U. S. 265 , 438 U. S. 303 (1978) (opinion of POWELL, J.), of segregation and discrimination
that can only be called grotesque. During much of the 19th century,
mental retardation was viewed as neither curable nor dangerous, and
the retarded were largely left to their own devices. [ Footnote 3/6 ] By the latter part of the
century and during the first decades of the new one, however,
social views of the retarded underwent a radical transformation.
Fueled by the rising tide of Social Darwinism, the "science" of
eugenics, and the extreme Page 473 U. S. 462 xenophobia of those years, [ Footnote
3/7 ] leading medical authorities and others began to portray
the "feeble-minded" as a "menace to society and civilization . . .
responsible in a large degree for many, if not all, of our social
problems." [ Footnote 3/8 ] A regime
of state-mandated segregation and degradation soon emerged that, in
its virulence and bigotry, rivaled, and indeed paralleled, the
worst excesses of Jim Crow. Massive custodial institutions were
built to warehouse the retarded for life; the aim was to halt
reproduction of the retarded and "nearly extinguish their race."
[ Footnote 3/9 ] Retarded children
were categorically excluded from Page 473 U. S. 463 public schools, based on the false stereotype that all were
ineducable and on the purported need to protect nonretarded
children from them. [ Footnote
3/10 ] State laws deemed the retarded "unfit for citizenship."
[ Footnote 3/11 ]

															Segregation was accompanied by eugenic marriage and
sterilization laws that extinguished for the retarded one of the
"basic civil rights of man" -- the right to marry and procreate. Skinner v. Oklahoma ex rel. Williamson, 316 U.
S. 535 , 316 U. S. 541 (1942). Marriages of the retarded were made, and in some States
continue to be, not only voidable but also often a criminal
offense. [ Footnote 3/12 ] The
purpose of such limitations, which frequently applied only to women
of child-bearing age, was unabashedly eugenic: to prevent the
retarded from propagating. [ Footnote
3/13 ] To assure this end, 29 States enacted compulsory eugenic
sterilization laws between 1907 and 1931. J. Landman, Human
Sterilization 302-303 (1932). See Buck v. Bell, 274 U. S. 200 , 274 U. S. 207 (1927) (Holmes, J.); cf. 163 U. S. Ferguson, Page 473 U. S. 464 163 U. S. 537 (1896); Bradwell v.
Illinois , 16 Wall. 130, 83 U. S. 141 (1873) (Bradley, J., concurring in judgment).

															Prejudice, once let loose, is not easily cabined. See
University of California Regents v. Bakke, 438 U.S. at 435 U. S. 395 (opinion of MARSHALL, J.). As of 1979, most States still
categorically disqualified "idiots" from voting, without regard to
individual capacity and with discretion to exclude left in the
hands of low-level election officials. [ Footnote 3/14 ] Not until Congress enacted the Education
of the Handicapped Act, 84 Stat. 175, as amended, 20 U.S.C. § 1400 et seq., were "the door[s] of public education" opened
wide to handicapped children. Hendrick Hudson District Board of
Education v. Rowley, 458 U. S. 176 , 458 U. S. 192 (1982). [ Footnote 3/15 ] But most
important, lengthy and continuing isolation of the retarded has
perpetuated the ignorance, irrational fears, and stereotyping that
long have plagued them. [ Footnote
3/16 ]

															In light of the importance of the interest at stake and the
history of discrimination the retarded have suffered, the Equal
Protection Clause requires us to do more than review the
distinctions drawn by Cleburne's zoning ordinance as if they
appeared in a taxing statute or in economic or commercial
legislation. [ Footnote 3/17 ] The
searching scrutiny I would give to restrictions Page 473 U. S. 465 on the ability of the retarded to establish community group
homes leads me to conclude that Cleburne's vague generalizations
for classifying the "feeble-minded" with drug addicts, alcoholics,
and the insane, and excluding them where the elderly, the ill, the
boarder, and the transient are allowed, are not substantial or
important enough to overcome the suspicion that the ordinance rests
on impermissible assumptions or outmoded and perhaps invidious
stereotypes. See Plyler v. Doe, 457 U.
S. 202 (1982); Roberts v. United States
Jaycees, 468 U. S. 609 (1984); Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Mills v. Habluetzel, 456 U. S.
91 (1982). III In its effort to show that Cleburne's ordinance can be struck
down under no "more exacting standard . . . than is normally
accorded economic and social legislation," ante at 473 U. S. 442 ,
the Court offers several justifications as to why the retarded do
not warrant heightened judicial solicitude. These justifications,
however, find no support in our heightened scrutiny precedents, and
cannot withstand logical analysis.

															The Court downplays the lengthy "history of purposeful unequal
treatment" of the retarded, see San Antonio Independent School
District v. Rodriguez, 411 U.S. at 411 U. S. 28 , by
pointing to recent legislative action that is said to "beli[e] a
continuing antipathy or prejudice." Ante at 473 U. S. 443 .
Building on this point, the Court similarly concludes that the
retarded Page 473 U. S. 466 are not "politically powerless," and deserve no greater judicial
protection than "[a]ny minority" that wins some political battles
and loses others. Ante at 473 U. S. 445 .
The import of these conclusions, it seems, is that the only
discrimination courts may remedy is the discrimination they alone
are perspicacious enough to see. Once society begins to recognize
certain practices as discriminatory, in part because previously
stigmatized groups have mobilized politically to lift this stigma,
the Court would refrain from approaching such practices with the
added skepticism of heightened scrutiny.

															Courts, however, do not sit or act in a social vacuum. Moral
philosophers may debate whether certain inequalities are absolute
wrongs, but history makes clear that constitutional principles of
equality, like constitutional principles of liberty, property, and
due process, evolve over time; what once was a "natural" and
"self-evident" ordering later comes to be seen as an artificial and
invidious constraint on human potential and freedom. Compare
Plessy v. Ferguson, 163 U. S. 537 (1896), and Bradwell v. Illinois, supra, at 83 U. S. 141 (Bradley, J., concurring in judgment), with Brown v. Board of
Education, 347 U. S. 483 (1954), and Reed v. Reed, 404 U. S.
71 (1971). Shifting cultural, political, and social
patterns at times come to make past practices appear inconsistent
with fundamental principles upon which American society rests, an
inconsistency legally cognizable under the Equal Protection Clause.
It is natural that evolving standards of equality come to be
embodied in legislation. When that occurs, courts should look to
the fact of such change as a source of guidance on evolving
principles of equality. In an analysis the Court today ignores, the
Court reached this very conclusion when it extended heightened
scrutiny to gender classifications and drew on parallel legislative
developments to support that extension:

															"[O]ver the past decade, Congress has itself manifested an
increasing sensitivity to sex-based classifications Page 473 U. S. 467 [citing examples]. Thus, Congress itself has concluded that
classifications based upon sex are inherently invidious, and this
conclusion of a coequal branch of Government is not without
significance to the question presently under consideration." Frontiero v. Richardson, 411 U.S. at 411 U. S. 687 .
[ Footnote 3/18 ]

															Moreover, even when judicial action has catalyzed legislative
change, that change certainly does not eviscerate the underlying
constitutional principle. The Court, for example, has never
suggested that race-based classifications became any less suspect
once extensive legislation had been enacted on the subject. See
Palmore v. Sidoti, 466 U. S. 429 (1984).

															For the retarded, just as for Negroes and women, much has
changed in recent years, but much remains the same; outdated
statutes are still on the books, and irrational fears or ignorance,
traceable to the prolonged social and cultural isolation of the
retarded, continue to stymie recognition of the dignity and
individuality of retarded people. Heightened judicial scrutiny of
action appearing to impose unnecessary barriers to the retarded is
required in light of increasing recognition that such barriers are
inconsistent with evolving principles of equality embedded in the
Fourteenth Amendment.

															The Court also offers a more general view of heightened
scrutiny, a view focused primarily on when heightened scrutiny does not apply, as opposed to when it does apply. [ Footnote 3/19 ] Two Page 473 U. S. 468 principles appear central to the Court's theory. First,
heightened scrutiny is said to be inapplicable where individuals in a group have distinguishing characteristics
that legislatures properly may take into account in some
circumstances. Ante at 473 U. S.
441 -442. Heightened scrutiny is also purportedly
inappropriate when many legislative classifications affecting the group are likely to be valid. We must, so the Court
says,

															"look to the likelihood that governmental action premised on a
particular classification is valid as a general matter, not merely
to the specifics of the case before us,"

															in deciding whether to apply heightened scrutiny. Ante at 473 U. S.
446 .

															If the Court's first principle were sound, heightened scrutiny
would have to await a day when people could be cut from a cookie
mold. Women are hardly alike in all their characteristics, but
heightened scrutiny applies to them because legislatures can rarely
use gender itself as a proxy for these other characteristics.
Permissible distinctions between persons must bear a reasonable
relationship to their relevant characteristics, Zobel v.
Williams, 457 U.S. at 457 U. S. 70 (BRENNAN, J., concurring), and gender per se is almost never relevant. Similarly, that some
retarded people have reduced capacities in some areas does not
justify using retardation as a proxy for reduced capacity in areas
where relevant individual variations in capacity do exist.

															The Court's second assertion -- that the standard of review must
be fixed with reference to the number of classifications to which a
characteristic would validly be relevant -- is similarly flawed.
Certainly the assertion is not a logical one; that a characteristic
may be relevant under some or even many circumstances does not
suggest any reason to presume it relevant under other circumstances
where there is reason to suspect it is not. A sign that says "men
only" looks very Page 473 U. S. 469 different on a bathroom door than a courthouse door. But see 83 U. S. Illinois, 16 Wall. 130 (1873).

															Our heightened-scrutiny precedents belie the claim that a
characteristic must virtually always be irrelevant to warrant
heightened scrutiny. Plyler, for example, held that the
status of being an undocumented alien is not a "constitutional
irrelevancy," and therefore declined to review with strict scrutiny
classifications affecting undocumented aliens. 457 U.S. at 457 U. S. 219 ,
n.19. While Frontiero stated that gender "frequently" and
"often" bears no relation to legitimate legislative aims, it did
not deem gender an impermissible basis of state action in all
circumstances. 411 U.S. at 411 U. S. 686 -687. Indeed, the Court has upheld some
gender-based classifications. Rostker v. Goldberg, 453 U. S. 57 (1981); Michael M. v. Superior Court of Sonoma County, 450 U. S. 464 (1981). Heightened but not strict, scrutiny is considered
appropriate in areas such as gender, illegitimacy, or alienage
[ Footnote 3/20 ] because the Court
views the trait as relevant under some circumstances, but not
others. [ Footnote 3/21 ] That view
-- indeed the very concept of heightened, as opposed to strict,
scrutiny -- is flatly inconsistent with the notion that heightened
scrutiny should not apply to the retarded because "mental
retardation is a characteristic that the government may
legitimately take into account in a wide range of decisions." Ante at 473 U. S. 446 .
Because the government also may not take this characteristic into
account in many circumstances, such as those presented here,
careful review is required to separate the permissible from the
invalid in classifications relying on retardation. Page 473 U. S. 470 The fact that retardation may be deemed a constitutional
irrelevancy in some circumstances is enough, given the
history of discrimination the retarded have suffered, to require
careful judicial review of classifications singling out the
retarded for special burdens. Although the Court acknowledges that
many instances of invidious discrimination against the retarded
still exist, the Court boldly asserts that, "in the vast majority
of situations," special treatment of the retarded is "not only
legitimate, but also desirable." Ante at 473 U. S. 444 .
That assertion suggests the Court would somehow have us calculate
the percentage of "situations" in which a characteristic is validly
and invalidly invoked before determining whether heightened
scrutiny is appropriate. But heightened scrutiny has not been
"triggered" in our past cases only after some undefined numerical
threshold of invalid "situations" has been crossed. An inquiry into
constitutional principle, not mathematics, determines whether
heightened scrutiny is appropriate. Whenever evolving principles of
equality, rooted in the Equal Protection Clause, require that
certain classifications be viewed as potentially discriminatory, and when history reveals systemic unequal
treatment, more searching judicial inquiry than minimum rationality
becomes relevant.

															Potentially discriminatory classifications exist only where some
constitutional basis can be found for presuming that equal rights
are required. Discrimination, in the Fourteenth Amendment sense,
connotes a substantive constitutional judgment that two individuals
or groups are entitled to be treated equally with respect to
something. With regard to economic and commercial matters, no basis
for such a conclusion exists, for as Justice Holmes urged the Lochner Court, the Fourteenth Amendment was not "intended
to embody a particular economic theory. . . ." Lochner v. New
York, 198 U.S. at 198 U. S. 75 (dissenting). As a matter of substantive policy, therefore,
government is free to move in any Page 473 U. S. 471 direction, or to change directions, [ Footnote 3/22 ] in the economic and commercial sphere.
[ Footnote 3/23 ] The structure of
economic and commercial life is a matter of political compromise,
not constitutional principle, and no norm of equality requires that
there be as many opticians as optometrists, see Williamson v.
Lee Optical of Oklahoma, Inc., 348 U.
S. 483 (1955), or new businesses as old, see New
Orleans v. Dukes, 427 U. S. 297 (1976).

															But the Fourteenth Amendment does prohibit other results under
virtually all circumstances, such as castes created by law along
racial or ethnic lines, see Palmore v. Sidoti, 466 U.S. at 466 U. S.
432 -433; Loving v. Virginia, 388 U. S.
1 (1967); McLaughlin v. Florida, 379 U.
S. 184 (1964); Shelley v. Kraemer, 334 U. S.
1 , 334 U. S. 23 (1948); Hernandez v. Texas, 347 U.
S. 475 (1954), and significantly constrains the range of
permissible government choices where gender or illegitimacy, for
example, are concerned. Where such constraints, derived from the
Fourteenth Amendment, are present, and where history teaches that
they have systemically been ignored, a "more searching judicial
inquiry" is required. United States v. Carolene Products
Co., 304 U. S. 144 , 304 U. S. 153 ,
n. 4 (1938).

															That more searching inquiry, be it called heightened scrutiny or
"second order" rational basis review, is a method of Page 473 U. S. 472 approaching certain classifications skeptically, with judgment
suspended until the facts are in and the evidence considered. The
government must establish that the classification is substantially
related to important and legitimate objectives, see, e.g.,
Craig v. Boren, 429 U. S. 190 (1976), so that valid and sufficiently weighty policies actually
justify the departure from equality. Heightened scrutiny does not
allow courts to second-guess reasoned legislative or professional
judgments tailored to the unique needs of a group like the
retarded, but it does seek to assure that the hostility or
thoughtlessness with which there is reason to be concerned has not
carried the day. By invoking heightened scrutiny, the Court
recognizes, and compels lower courts to recognize, that a group may
well be the target of the sort of prejudiced, thoughtless, or
stereotyped action that offends principles of equality found in the
Fourteenth Amendment. Where classifications based on a particular
characteristic have done so in the past, and the threat that they
may do so remains, heightened scrutiny is appropriate. [ Footnote 3/24 ] Page 473 U. S. 473 As the history of discrimination against the retarded and its
continuing legacy amply attest, the mentally retarded have been,
and in some areas may still be, the targets of action the Equal
Protection Clause condemns. With respect to a liberty so valued as
the right to establish a home in the community, and so likely to be
denied on the basis of irrational fears and outright hostility,
heightened scrutiny is surely appropriate. IV In light of the scrutiny that should be applied here, Cleburne's
ordinance sweeps too broadly to dispel the suspicion that it rests
on a bare desire to treat the retarded as outsiders, pariahs who do
not belong in the community. The Court, while disclaiming that
special scrutiny is necessary or warranted, reaches the same
conclusion. Rather than striking the ordinance down, however, the
Court invalidates it merely as applied to respondents. I must
dissent from the novel proposition that "the preferred course of
adjudication" Page 473 U. S. 474 is to leave standing a legislative Act resting on "irrational
prejudice," ante at 473 U. S. 450 ,
thereby forcing individuals in the group discriminated against to
continue to run the Act's gauntlet.

															The Court appears to act out of a belief that the ordinance
might be "rational" as applied to some subgroup of the retarded
under some circumstances, such as those utterly without the
capacity to live in a community, and that the ordinance should not
be invalidated in toto if it is capable of ever being
validly applied. But the issue is not "whether the city may never
insist on a special use permit for the mentally retarded in an R-3
zone." Ante at 473 U. S. 447 .
The issue is whether the city may require a permit pursuant to a
blunderbuss ordinance drafted many years ago to exclude all the
"feeble-minded," or whether the city must enact a new ordinance
carefully tailored to the exclusion of some well-defined subgroup
of retarded people in circumstances in which exclusion might
reasonably further legitimate city purposes.

															By leaving the sweeping exclusion of the "feebleminded" to be
applied to other groups of the retarded, the Court has created
peculiar problems for the future. The Court does not define the
relevant characteristics of respondents or their proposed home that
make it unlawful to require them to seek a special permit. Nor does
the Court delineate any principle that defines to which, if any,
set of retarded people the ordinance might validly be applied.
Cleburne's City Council and retarded applicants are left without
guidance as to the potentially valid, and invalid, applications of
the ordinance. As a consequence, the Court's as-applied remedy
relegates future retarded applicants to the standardless discretion
of low-level officials who have already shown an all too willing
readiness to be captured by the "vague, undifferentiated fears," ante at 473 U. S. 449 ,
of ignorant or frightened residents.

															Invalidating on its face the ordinance's special treatment of
the "feeble-minded," in contrast, would place the responsibility
for tailoring and updating Cleburne's unconstitutional Page 473 U. S. 475 ordinance where it belongs: with the legislative arm of the city
of Cleburne. If Cleburne perceives a legitimate need for requiring
a certain well-defined subgroup of the retarded to obtain special
permits before establishing group homes, Cleburne will, after
studying the problem and making the appropriate policy decisions,
enact a new, more narrowly tailored ordinance. That ordinance might
well look very different from the current one; it might separate
group homes (presently treated nowhere in the ordinance) from
hospitals, and it might define a narrow subclass of the retarded
for whom even group homes could legitimately be excluded. Special
treatment of the retarded might be ended altogether. But whatever
the contours such an ordinance might take, the city should not be
allowed to keep its ordinance on the books intact, and thereby
shift to the courts the responsibility to confront the complex
empirical and policy questions involved in updating statutes
affecting the mentally retarded. A legislative solution would yield
standards and provide the sort of certainty to retarded applicants
and administrative officials that case-by-case judicial rulings
cannot provide. Retarded applicants should not have to continue to
attempt to surmount Cleburne's vastly overbroad ordinance.

															The Court's as-applied approach might be more defensible under
circumstances very different from those presented here. Were the
ordinance capable of being cleanly severed, in one judicial cut,
into its permissible and impermissible applications, the problems I
have pointed out would be greatly reduced. Cf. United States v.
Grace, 461 U. S. 171 (1983) (statute restricting speech and conduct in Supreme Court
building and on its grounds invalid as applied to sidewalks); but cf. id. at 461 U. S.
184 -188 (opinion concurring in part and dissenting in
part). But no readily apparent construction appears, nor has the
Court offered one, to define which group of retarded people the
city might validly require a permit of, and which it might not, in
the R-3 zone. The Court's as-applied holding is particularly
inappropriate here, Page 473 U. S. 476 for nine-tenths of the group covered by the statute appears
similarly situated to respondents, see ante at 473 U. S. 442 ,
n. 9 -- a figure that makes the statutory presumption enormously
overbroad. Cf. Stanley v. Illinois, 405 U.
S. 645 (1972) (invalidating statutory presumption
despite State's insistence that it validly applied to "most" of
those covered).

															To my knowledge, the Court has never before treated an equal
protection challenge to a statute on an as-applied basis. When
statutes rest on impermissibly overbroad generalizations, our cases
have invalidated the presumption on its face. [ Footnote 3/25 ] We do not instead leave to the
courts the task of redrafting the statute through an ongoing and
cumbersome process of "as applied" constitutional rulings. In Cleveland Board of Education v. LaFleur, 414 U.
S. 632 (1974), for Page 473 U. S. 477 example, we invalidated, inter alia, a maternity leave
policy that required pregnant schoolteachers to take unpaid leave
beginning five months before their expected due date. The school
board argued that some teachers became physically incapable of
performing adequately in the latter stages of their pregnancy, and
we accepted this justification for purposes of our decision.
Assuming the policy might validly be applied to some teachers,
particularly in the last few weeks of their pregnancy, id. at 414 U. S. 647 ,
n. 13, we nonetheless invalidated it in toto, rather than
simply as applied to the particular plaintiff. The Court required
school boards to employ "alternative administrative means" to
achieve their legitimate health and safety goal, id. at 414 U. S. 647 ,
or the legislature to enact a more carefully tailored statute, id. at 414 U. S. 647 ,
n. 13.

															Similarly, Caban v. Mohammed, 441 U.
S. 380 (1979), invalidated a law that required parental
consent to adoption from unwed mothers, but not from unwed fathers.
This distinction was defended on the ground, inter alia, that unwed fathers were often more difficult to locate,
particularly during a child's infancy. We suggested the legislature
might make proof of abandonment easier or proof of paternity
harder, but we required the legislature to draft a new statute
tailored more precisely to the problem of locating unwed fathers.
The statute was not left on the books by invalidating it only as
applied to unwed fathers who actually proved they could be located.
When a presumption is unconstitutionally overbroad, the preferred
course of adjudication is to strike it down. See also United
States Dept. of Agriculture v. Moreno, 413 U.
S. 528 (1973); Stanley v. Illinois, supra; Vlandis
v. Kline, 412 U. S. 441 , 412 U. S.
453 -454 (1973); Carrington v. Rash, 380 U. S. 89 (1965); Sugarman v. Dougall, 413 U.
S. 634 , 413 U. S.
646 -649 (1973); Weber v. Aetna Casualty & Surety
Co., 406 U. S. 164 (1972); Levy v. Louisiana, 391 U. S.
68 (1968).

															In my view, the Court's remedial approach is both unprecedented
in the equal protection area and unwise. This doctrinal Page 473 U. S. 478 change, of course, was not sought by the parties, suggested by
the various amici, or discussed at oral argument.
Moreover, the Court does not persuasively reason its way to its
novel remedial holding nor reconsider our prior cases directly on
point. Instead, the Court simply asserts that "this is the
preferred course of adjudication." Given that this assertion
emerges only from today's decision, one can only hope it will not
become entrenched in the law without fuller consideration. V The Court's opinion approaches the task of principled equal
protection adjudication in what I view as precisely the wrong way.
The formal label under which an equal protection claim is reviewed
is less important than careful identification of the interest at
stake and the extent to which society recognizes the classification
as an invidious one. Yet in focusing obsessively on the appropriate
label to give its standard of review, the Court fails to identify
the interests at stake or to articulate the principle that
classifications based on mental retardation must be carefully
examined to assure they do not rest on impermissible assumptions or
false stereotypes regarding individual ability and need. No
guidance is thereby given as to when the Court's free-wheeling, and
potentially dangerous, "rational basis standard" is to be employed,
nor is attention directed to the invidiousness of grouping all
retarded individuals together. Moreover, the Court's narrow,
as-applied remedy fails to deal adequately with the overbroad
presumption that lies at the heart of this case. Rather than
leaving future retarded individuals to run the gauntlet of this
overbroad presumption, I would affirm the judgment of the Court of
Appeals in its entirety, and would strike down on its face the
provision at issue. I therefore concur in the judgment in part and
dissent in part.

															[ Footnote 3/1 ] See also Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101 , 323 U. S. 105 (1944) ("If there is one doctrine more deeply rooted than any other
in the process of constitutional adjudication, it is that we ought
not to pass on questions of constitutionality . . . unless such
adjudication is unavoidable"); Burton v. United States, 196 U. S. 283 , 196 U. S. 295 (1905) ("It is not the habit of the court to decide questions of a
constitutional nature unless absolutely necessary to a decision of
the case"); see generally Ashwander v. TVA, 297 U.
S. 288 , 297 U. S.
346 -348 (1936) (Brandeis, J., concurring).

															Even today, the Court again "calls to mind" these principles, ante at 473 U. S. 447 ,
but given the Court's lengthy dicta on heightened scrutiny, this
call to principle must be read with some irony.

															[ Footnote 3/2 ]

															I do not suggest the lower court erred in relying on heightened
scrutiny, for I believe more searching inquiry than the traditional
rational basis test is required to invalidate Cleburne's ordinance. See infra at 473 U. S.
458 -460.

															[ Footnote 3/3 ] See also Three Affiliated Tribes v. Wold Engineering, 467 U. S. 138 , 467 U. S.
157 -158 (1984); Leroy v. Great Western United
Corp., 443 U. S. 173 , 443 U. S. 181 (1979).

															[ Footnote 3/4 ]

															The two cases the Court cites in its rational basis discussion, Zobel v. Williams, 457 U. S. 55 (1982), and United States Dept. of Agriculture v. Moreno, 413 U. S. 528 (1973), expose the special nature of the rational basis test
employed today. As two of only a handful of modern equal protection
cases striking down legislation under what purports to be a
rational basis standard, these cases must be, and generally have
been, viewed as intermediate review decisions masquerading in
rational basis language. See, e.g., L. Tribe, American
Constitutional Law § 16-31, p. 1090, n. 10 (1978) (discussing Moreno ); see also Moreno, supra, at 413 U. S. 538 (Douglas, J., concurring); Zobel, supra, at 457 U. S. 65 (BRENNAN, J., concurring).

															[ Footnote 3/5 ]

															Indeed, the group home in this case was specifically located
near a park, a school, and a shopping center so that its residents
would have full access to the community at large.

															[ Footnote 3/6 ]

															S. Herr, Rights and Advocacy for Retarded People 18 (1983).

															[ Footnote 3/7 ]

															On the role of these ideologies in this era, see K.
Stampp, Era of Reconstruction, 1865-1877, pp. 18-22 (1965).

															[ Footnote 3/8 ]

															H. Goddard, The Possibilities of Research as Applied to the
Prevention of Feeblemindedness, Proceedings of the National
Conference of Charities and Correction 307 (1915), cited in A.
Deutsch, The Mentally Ill in America 360 (2d ed.1949). See
also Fernald, The Burden of Feeblemindedness, 17 J.
Psycho-Asthenics 87, 90 (1913) (the retarded "cause unutterable
sorrow at home and are a menace and danger to the community");
Terman, Feeble-Minded Children in the Public Schools of California,
5 Schools & Society 161 (1917) ("[O]nly recently have we begun
to recognize how serious a menace [feeblemindedness] is to the
social, economic and moral welfare of the state. . . . [I]t is
responsible . . . for the majority of cases of chronic and
semi-chronic pauperism, and for much of our alcoholism,
prostitution, and venereal diseases"). Books with titles such as
"The Menace of the Feeble Minded in Connecticut" (1915), issued by
the Connecticut School for Imbeciles, became commonplace. See C. Frazier, (Chairman, Executive Committee of Public
Charities Assn. of Pennsylvania), The Menace of the Feeble-Minded
In Pennsylvania (1913); W. Fernald, The Burden of Feeble-Mindedness
(1912) (Mass.); Juvenile Protection Association of Cincinnati, The
Feeble-Minded, Or the Hub to Our Wheel of Vice (1915) (Ohio). The
resemblance to such works as R. Shufeldt, The Negro: A Menace to
American Civilization (1907), is striking, and not
coincidental.

															[ Footnote 3/9 ]

															A. Moore, The Feeble-Minded in New York 3 (1911). This book was
sponsored by the State Charities Aid Association. See also P. Tyor & L. Bell, Caring for the Retarded in America 71-104
(1984). The segregationist purpose of these laws was clear. See, e.g., Act of Mar. 22, 1915, ch. 90, 1915 Tex.Gen.Laws
143 (repealed 1955) (Act designed to relieve society of "the heavy
economic and moral losses arising from the existence at large of
these unfortunate persons").

															[ Footnote 3/10 ] See Pennsylvania Assn. for Retarded Children v.
Pennsylvania, 343 F.
Supp. 279 , 294-295 (ED Pa.1972); see generally S.
Sarason & J. Doris, Educational Handicap, Public Policy, and
Social History 271-272 (1979).

															[ Footnote 3/11 ]

															Act of Apr. 3, 1920, ch. 210, § 17, 1920 Miss. Laws 288,
294.

															[ Footnote 3/12 ] See, e.g., Act of Mar.19, 1928, ch. 156, 1928 Ky.Acts
534, remains in effect, Ky.Rev.Stat. § 402.990(2) (1984); Act of
May 25, 1905, No. 136, § 1, 1905 Mich.Pub.Acts 185, 186, remains in
effect; Mich.Comp.Laws § 551.6 (1979); Act of Apr. 3, 1920, ch.
210, § 29, 1920 Miss. Gen. Laws 288, 300, remains in effect with
minor changes, Miss.Code Ann. § 41-21-45 (1972).

															[ Footnote 3/13 ] See Chamberlain, Current Legislation -- Eugenics and
Limitations of Marriage, 9 A.B.A.J. 429 (1923); Lau v.
Lau, 81 N. H. 44, 122 A. 345, 346 (1923); State v.
Wyman , 118 Conn. 501, 173 A. 155, 156 (1934). See
generally Linn & Bowers, The Historical Fallacies Behind
Legal Prohibitions of Marriages Involving Mentally Retarded Persons
-- The Eternal Child Grows Up, 13 Gonz.L.Rev. 625 (1978); Shaman,
Persons Who Are Mentally Retarded: Their Right to Marry and Have
Children, 12 Family L. Q. 61 (1978); Note, The Right of the
Mentally Disabled to Marry: A Statutory Evaluation, 15 J. Family L.
463 (1977).

															[ Footnote 3/14 ] See Note, Mental Disability and the Right to Vote, 88
Yale L.J. 1644 (1979).

															[ Footnote 3/15 ]

															Congress expressly found that most handicapped children,
including the retarded, were simply shut out from the public school
system. See 20 U.S.C. § 1400(b).

															[ Footnote 3/16 ] See generally G. Allport, The Nature of Prejudice
(1958) (separateness among groups exaggerates differences).

															[ Footnote 3/17 ]

															This history of discrimination may well be directly relevant to
the issue before the Court. Cleburne's current exclusion of the
"feeble-minded" in its 1965 zoning ordinance appeared as a similar
exclusion of the "feebleminded" in the city's 1947 ordinance, see Act of Sept. 26, 1947, § 5; the latter tracked word
for word a similar exclusion in the 1929 comprehensive zoning
ordinance for the nearby city of Dallas. See Dallas
Ordinance, No. 2052, § 4, passed Sept. 11, 1929.

															Although we have been presented with no legislative history for
Cleburne's zoning ordinances, this genealogy strongly suggests that
Cleburne's current exclusion of the "feeble-minded" was written in
the darkest days of segregation and stigmatization of the retarded,
and simply carried over to the current ordinance. Recently we held
that extant laws originally motivated by a discriminatory purpose
continue to violate the Equal Protection Clause, even if they would
be permissible were they reenacted without a discriminatory motive. See Hunter v. Underwood, 471 U. S. 222 , 471 U. S. 233 (1985). But in any event, the roots of a law that, by its terms,
excludes from a community the "feebleminded" are clear. As the
examples above attest, see 473
U.S. 432 fn3/7|>n. 7, supra, "feebleminded" was the
defining term for all retarded people in the era of overt and
pervasive discrimination.

															[ Footnote 3/18 ]

															Although Frontiero was a plurality opinion, it is now
well established that gender classifications receive heightened
scrutiny. See, e.g., Mississippi University for Women v.
Hogan, 458 U. S. 718 (1982).

															[ Footnote 3/19 ]

															For its general theories about heightened scrutiny, the Court
relies heavily, indeed virtually exclusively, on the "lesson" of Massachusetts Board of Retirement v. Murgia, 427 U.
S. 307 (1976). The brief per curiam in Murgia, however, was handed down in the days before the Court explicitly
acknowledged the existence of heightened scrutiny. See Craig v.
Boren, 429 U. S. 190 (1976); id. at 429 U. S. 210 (POWELL, J., concurring). Murgia explains why age-based
distinctions do not trigger strict scrutiny, but says nothing about
whether such distinctions warrant heightened scrutiny. Nor have
subsequent cases addressed this issue. See Vance v.
Bradley, 440 U. S. 93 , 440 U. S. 97 (1979).

															[ Footnote 3/20 ]

															Alienage classifications present a related variant, for strict
scrutiny is applied to such classifications in the economic and
social area, but only heightened scrutiny is applied when the
classification relates to "political functions." Cabell v.
Chavez-Salido, 454 U. S. 432 , 454 U. S. 439 (1982); see also Bernal v. Fainter, 467 U.
S. 216 , 467 U. S.
220 -222 (1984). Thus, characterization of the area to
which an alienage classification applies is necessary to determine
how strongly it must be justified.

															[ Footnote 3/21 ]

															I express no view here as to whether strict scrutiny ought to be
extended to these classifications.

															[ Footnote 3/22 ]

															Constitutional provisions other than the Equal Protection
Clause, such as the Contracts Clause, the Just Compensation Clause,
or the Due Process Clause, may constrain the extent to which
government can upset settled expectations when changing course and
the process by which it must implement such changes.

															[ Footnote 3/23 ]

															Only when it can be said that "Congress misapprehended what it
was doing," United States Railroad Retirement Bd. v.
Fritz, 449 U. S. 166 , 449 U. S. 193 (1980) (BRENNAN, J., dissenting), will a classification fail the
minimal rational basis standard. Even then, the classification
fails not because of limits on the directions which substantive
policy can take in the economic and commercial area, but because
the classification reflects no underlying substantive
policy -- it is simply arbitrary.

															[ Footnote 3/24 ]

															No single talisman can define those groups likely to be the
target of classifications offensive to the Fourteenth Amendment and
therefore warranting heightened or strict scrutiny; experience, not
abstract logic, must be the primary guide. The "political
powerlessness" of a group may be relevant, San Antonio
Independent School District v. Rodriguez, 411 U. S.
1 , 411 U. S. 28 (1973), but that factor is neither necessary, as the gender cases
demonstrate, nor sufficient, as the example of minors illustrates.
Minors cannot vote and thus might be considered politically
powerless to an extreme degree. Nonetheless, we see few statutes
reflecting prejudice or indifference to minors, and I am not aware
of any suggestion that legislation affecting them be viewed with
the suspicion of heightened scrutiny. Similarly, immutability of
the trait at issue may be relevant, but many immutable
characteristics, such as height or blindness, are valid bases of
governmental action and classifications under a variety of
circumstances. See ante at 473 U. S.
442 -443, n. 10.

															The political powerlessness of a group and the immutability of
its defining trait are relevant insofar as they point to a social
and cultural isolation that gives the majority little reason to
respect or be concerned with that group's interests and needs.
Statutes discriminating against the young have not been common nor
need be feared because those who do vote and legislate were once
themselves young, typically have children of their own, and
certainly interact regularly with minors. Their social integration
means that minors, unlike discrete and insular minorities, tend to
be treated in legislative arenas with full concern and respect,
despite their formal and complete exclusion from the electoral
process.

															The discreteness and insularity warranting a "more searching
judicial inquiry," United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 153 ,
n. 4 (1938), must therefore be viewed from a social and cultural
perspective, as well as a political one. To this task judges are
well suited, for the lessons of history and experience are surely
the best guide as to when, and with respect to what interests,
society is likely to stigmatize individuals as members of an
inferior caste, or view them as not belonging to the community.
Because prejudice spawns prejudice, and stereotypes produce
limitations that confirm the stereotype on which they are based, a
history of unequal treatment requires sensitivity to the prospect
that its vestiges endure. In separating those groups that are
discrete and insular from those that are not, as in many important
legal distinctions, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.
S. 345 , 256 U. S. 349 (1921) (Holmes, J.).

															[ Footnote 3/25 ]

															The Court strongly suggests that the loose fit of the ordinance
to its purported objectives signifies that the ordinance rests on
"an irrational prejudice," ante at 473 U. S. 450 ,
an unconstitutional legislative purpose. See Mississippi
University for Women v. Hogan, 458 U.S. at 458 U. S. 725 .
In that event, recent precedent should make clear that the
ordinance must, in its entirety, be invalidated. See Hunter v.
Underwood, 471 U. S. 222 (1985). Hunter involved a 1902 constitutional provision
disenfranchising various felons. Because that provision had been
motivated, at least in part, by a desire to disenfranchise Negroes,
we invalidated it on its face. In doing so, we did not suggest that
felons could not be deprived of the vote through a statute
motivated by some purpose other than racial discrimination. See
Richardson v. Ramirez, 418 U. S. 24 (1974). Yet that possibility, or the possibility that the provision
might have been only partly motivated by the desire to
disenfranchise Negroes, did not suggest the provision should be
invalidated only "as applied" to the particular plaintiffs in Hunter, or even as applied to Negroes more generally.
Instead we concluded:

															"Without deciding whether § 182 would be valid if enacted today
without any impermissible motivation, we simply observe that its
original enactment was motivated by a desire to discriminate
against blacks on account of race, and the section continues to
this day to have that effect. As such, it violates equal protection
under Arlington Heights [v. Metropolitan Housing Development
Corp., 429 U. S. 252 (1977)]."

															471 U.S. at 471 U. S. 233 .
If a discriminatory purpose infects a legislative Act, the Act
itself is inconsistent with the Equal Protection Clause, and cannot
validly be applied to anyone.

Summary: The Supreme Court ruled that a Texas city's decision to require a special use permit for a group home for the mentally disabled was not a violation of the Equal Protection Clause. The Court held that mental retardation is not a "quasi-suspect" classification and that the city's action was rationally related to a legitimate state interest. The Court found that the city's interest in dealing with and providing for the mentally disabled was legitimate and that the legislative response to their needs did not indicate continuing antipathy or prejudice. The Court also noted the importance of considering social and cultural perspectives when evaluating equal protection claims.