Opinion of MARSHALL, J.

473 U. S.

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 rationalbasis 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 "feebleminded" 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 rationalbasis review is being applied, ante, at 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

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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, 501 (1985) (WHITE, J.) (quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885)).' When a lower court correctly decides a case, albeit on what this Court concludes are unnecessary constitutional grounds," "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, 633 (1972). 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, 724, n. 9 (1982) (declining to address strict scrutiny when heightened scrutiny sufficient to invalidate action challenged); Stanton v. Stanton, 421 U. S. 7, 13 (1975)

3

'See also Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 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, 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, 346-348 (1936) (Brandeis, J., concurring).

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

'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 458-460. See also Three Affiliated Tribes v. Wold Engineering, 467 U. S. 138, 157-158 (1984); Leroy v. Great Western United Corp., 443 U. S. 173, 181 (1979).

3

Opinion of MARSHALL, J.

473 U. S.

(same); Hooper v. Bernalillo County Assessor, 472 U. S. 612, 618 (1985) (declining to reach heightened scrutiny in review of residency-based classifications that fail rationalbasis test); Zobel v. Williams, 457 U. S. 55, 60-61 (1982) (same); cf. Mitchell v. Forsyth, 472 U. S. 511, 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 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 448, 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, 196 (1983); Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 461-462,

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464 (1981); Firemen v. Chicago, R. I. & P. R. Co., 393 U. S. 129, 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 527; see New Orleans v. Dukes, 427 U. S. 297, 303 (1976); Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 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. The suggestion that

'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 rationalbasis 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,

Opinion of MARSHALL, J.

473 U. S.

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, 99 (1973) (MARSHALL, J., dissenting). See also Plyler v. Doe, 457 U. S. 202, 230-231 (1982) (MARSHALL, J., concurring); Dandridge v. Williams, 397 U. S. 471, 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).

p. 1090, n. 10 (1978) (discussing Moreno); see also Moreno, supra, at 538 (Douglas, J., concurring); Zobel, supra, at 65 (BRENNAN, J., concurring).